why legal education is failing women

Yale Journal of Law & FeminismVolume 18Issue 2 Yale Journal of Law & Feminism Article 3

2006

Why Legal Education Is Failing WomenSari Bashi

Maryana Iskander

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Recommended CitationBashi, Sari and Iskander, Maryana (2006) "Why Legal Education Is Failing Women," Yale Journal of Law & Feminism: Vol. 18: Iss. 2,Article 3.Available at: http://digitalcommons.law.yale.edu/yjlf/vol18/iss2/3

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Why Legal Education Is Failing Women

Sari Bashit and Maryana Iskandertt

ABSTRACT. In this Article, Ms. Bashi and Ms. Iskander report and analyzethe results of a comprehensive study of the way Yale Law School educatesfemale and male students. This research is distinctive for its attention to facultyobservations and its robust use of quantitative and qualitative data to mapwomen's experiences throughout law school. The authors use in-depthinterviews with faculty members, narrative and quantitative responses from astudent survey, and class participation data to show that, despite similarentering credentials, female students at Yale Law School are underrepresentedamong participants in class discussions and among students who formprofessionally beneficial relationships with faculty members. The authorsbroaden the study beyond Yale to argue that (primarily male) law professorstreat women differently from men and reward behaviors that are more likely tobe displayed by men. The Article concludes with a series of recommendationsand argues that, if law schools reconsider what values they cultivate andreward, they will provide a better education for women and men alike.

t J.D., Yale Law School, 2003; Judicial Clerk, Justice Edmond Levi, Supreme Court of Israel (2003-2004); Robert L. Bernstein International Human Rights Fellow (2005-2006); Executive Director, Gisha:Center for the Legal Protection of Freedom of Movement, Tel Aviv.tt J.D., Yale Law School, 2003; Judicial Clerk, Judge Diane Wood, Seventh Circuit Court of Appeals(2003-2004); Advisor to the President, Rice University (2004-2006); Executive Vice President, PlannedParenthood Federation of America. Our appreciation goes to Judith Resnik for her consistent andsubstantive guidance and for giving our work a broad platform; Ian Ayres for his assistance interpretingthe data, his receptiveness to our findings, and his ongoing support of this project; Louise Melling andCatherine Weiss for imparting to us their passionate commitment to gender equality; Lani Guinier forinspiring our work and for challenging us to develop it further; and to the following individuals for theirthoughtful comments and insights: Anne Alstott, Michelle Anderson, Peggy Cooper Davis, Bert Huang,Christine Jolls, Deborah Rhode, Vicki Schultz, Catherine Sharkey, Catharine Stimpson, and Julie Suk.We also thank the Paul and Daisy Soros Foundation for its support and Debevoise & Plimpton LLP forfacilitating work on this paper during the summer of 2005. We are grateful to the Yale Law School staffand administrators who went out of their way to provide us with data on women's performance andcredentials: Megan Barnett, Elizabeth Beaudin, Judith Calvert, Marilyn Drees, Abigail Grow, CraigJanecek, Susan Monsen, Georgeanne Rogers, Barbara Safriet, Christine Severson, and Kelly Voight.Finally, we are also grateful to The Yale Law Journal for providing access to its records.

Copyright © 2006 by the Yale Journal of Law and Feminism

Yale Journal of Law and Feminism

I. IN TRO D U CTION ............................................................................................. 39 1II. AMERICAN LEGAL EDUCATION AND YALE LAW SCHOOL .......................... 394

A. Women's Performance: A National Perspective .......................... 394B. Locating the Problem in Law School ......................................... 395C. The Relevance of Women's Experiences at Yale Law School .... 399D . M ethodology ................................................................................ 400

III. FEWER WOMEN'S VOICES IN THE CLASSROOM ......................................... 403A. Law School Classes for Men and Women ................................... 404

1. Men and Women Cluster in Different Classes ........................ 4042. Women Participate Less in Law School Classes .................... 405

a. Class Participation D ata ....................................................... 405b. Faculty O bservations ........................................................... 407c. Student Survey Responses ................................................... 409

B. Why Do Women Speak Less in Class? ..................... . . . .. .. . .. . . .. .. . .. 4091. Professors Engage Female Students Less Than Male

S tudents ................................................................................... 4092. Law School Professors Reward Behaviors More

Commonly Displayed by Men ................................................ 412C. Consequences of Diminished Classroom Participation ............... 415

1. Classroom Performance Is a Springboard to Relationshipsw ith F aculty ............................................................................ 4 15

2. Silence in Class Reflects Lost Opportunities and Alienation. 416IV. FEWER WOMEN FIND FACULTY MENTORS AND ADVOCATES ................... 418

A. Approaching Professors Outside the Classroom .......................... 4191. Women Are Less Comfortable Approaching Faculty

M em b ers ................................................................................ 4 192. Faculty Observe Differences in Styles of Approach .............. 421

B. On Finding Advocates and Mentors ............................................ 4221. Women May Be More Hesitant to Request Letters of

R ecom m endation ................................................................... 4222. Women Are Less Likely to Have a Mentor ........................... 4233. Women Are Underrepresented in Areas Where Faculty

M entoring M atters ................................................................. 424C. Lack of Transparency Exacerbates Harm Created by Distance... 427D. Explaining Different Experiences of Women and Men Outside

the C lassroom .............................................................................. 4291. Some Faculty Members Send Different Signals to Female

and M ale Students .................................................................. 4292. A Self-Replication Approach to Mentoring Disadvantages

Fem ale Students ..................................................................... 4313. Institutional Values Reflect a Male Bias ................................ 432

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V. TRANSFORMING INSTITUTIONAL VALUES .................................................. 434A . Invest in Pedagogy ....................................................................... 435B. Prom ote Greater Transparency .................................................... 438C. Diversify Law School Faculties ................................................... 440D . A n Essential M andate .................................................................. 442

APPENDIX A: Profile of Yale Law School Students ........................................ 444APPENDIX B: Mentoring at Yale Law School ................................................. 446APPENDIX C: Yale Law Students Entering Legal Academia .......................... 447APPENDIX D: Yale Law School Student Clerkships ....................................... 449

I. INTRODUCTION

In 2001, for the first time in the history of the legal profession, Americanlaw schools admitted a J.D. class that was roughly equally divided betweenmen and women.I After centuries of explicit exclusion, women now enjoy thesame rights as men to enter the legal profession, and the two sexes areexercising this opportunity in equal numbers. Perhaps it is to be expected thatthe upper ranks of the legal profession-populated as they are by graduates ofmale-dominated law school classes-have made only limited progress in

2integrating women. Is it merely a question of time before a new and fullyintegrated-by-sex generation of lawyers rises to the top of the profession,bringing gender equality to law firm partnerships, judicial chambers, lawschool faculties, and other jobs where legally-trained professionals cluster?

In this Article, we argue that the results of our intensive case study of theexperience of women at Yale Law School indicate that it is not simply aquestion of time. Despite gender parity in entering J.D. classes, law schools arenot adequately preparing female law students for success, particularly in theupper ranks. In order for women to integrate the top, as well as the bottom,rungs of the profession, law schools must make fundamental changes in theways they teach students. As individuals, law school professors treat womendifferently from men, and as institutions, law schools cultivate and rewardpatterns of behavior that are more likely to be found among men than among

1. Jonathan D. Glater, Women Are Close to Being Majority of Law Students, N.Y. TIMES, Mar. 26,2001, at Al. Women currently constitute about 48% of U.S. law students. ABA COMM'N ON WOMEN INTHE PROFESSION, CURRENT GLANCE OF WOMEN IN THE LAW (2002), available athttp://www.abanet.org/women/glance.pdf.

2. See infra Part II.A. See also Richard K. Neumann, Jr., Women in Legal Education: What theStatistics Show, 50 J. LEGAL EDUC. 313, 322 (2000) (noting underrepresentation of women on lawschool faculties).

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women, even though these behaviors do not necessarily reflect the skillsstudents need to be good lawyers, judges, and legal academics.

We make no accusation of intentional discrimination. Law schools and thelegal profession were built by men and for men; it would be remarkable,indeed, if they did not reflect preferences and tendencies associated with men.Factors beyond law school-pre-law school socialization, structural barrierswithin the legal profession, unequal distributions of domestic responsibilities,potentially "different" preferences and proclivitiesa3-may exert disparatepressures on men and women and make it more difficult for women to achievepositions of power in law. The ways that law schools educate men and women,however, actively perpetuate and exacerbate the challenges women face priorand subsequent to their induction into the legal profession as law students. ThisArticle focuses on how law schools are structured, evaluating the behaviorsthey cultivate and reward, and questions the desirability of that rewardstructure. Transforming law schools alone will not bring full integration to thelegal profession, but absent such transformation, full integration is unlikely totake place.

Any inquiry into women's success in law and law school must grapple withthe continued significance accorded to standards of success that were createdwhen women were excluded from the profession. An integrated professionwould likely define success in ways that account for groups currentlyunderrepresented, including women and members of ethnic and racial minoritygroups. We focus on the representation of women in traditional positions ofpower because women must attain those positions to change the profession andredefine its measures of success. While disproportionate representation in someareas of law4 may reflect women's unfettered choices, persistent evidence ofexclusion prevents us from accepting those choices as unconstrained. Thereforms we suggest aim to remove obstacles to women's success (as the legalprofession currently defines success) while enabling women to alter theachievements that the profession values. Reforming legal pedagogy will notsimply remove some of the barriers that women face in their first encounterswith law-it will improve legal education for men and women alike.

Most of the data cited in this Article were collected as part of a study ("theYale Study") sponsored by the student group Yale Law Women (YLW) andcoordinated by the authors, in which eighty students interviewed faculty

3. Some feminist theories postulate that men and women are "different," either because they aresocialized differently or because of biological essentialism. See infra text accompanying note 88. Ourdata show observed differences in the way men and women behave in law school. Some of thesedifferences in behavior originate outside law school, but we take no position on their source. Thatdiscussion is beyond the scope of this Article, which focuses on how law schools respond to and

cultivate those differences.4. For example, women are twice as likely as men to enter public interest jobs upon graduation. See

NALP, EMPLOYMENT PATTERNS-20-YEAR TRENDS-1982-2002, http://www.nalp.org/content/index.php?pid=169 (last visited Nov. 14, 2006).

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members, collected student responses to questions in an online survey, andrecorded classroom participation by gender.5 We express our gratitude to themen and women, faculty and students, of Yale Law School who candidly and

thoughtfully participated in this examination of the role of gender in legal

education and faculty-student relations. Their observations and insights informour arguments and the recommendations we offer to improve legal education.

Part II of this Article assesses women's performance in the American legalprofession and then focuses on students at Yale Law School, the site of our in-

depth institutional study. Part II shows that women and men enter Yale LawSchool with similar credentials, thereby locating subsequent performancedifferences in their experience of law school. This Part also explains whyaspects of women's experiences at Yale Law School can be generalized to

other law schools and to women's success in the profession. The findingsreported from the Yale Study are consistent with the literature describingwomen's diminished experiences at a range of other law schools. 6 Yale's

particular emphasis on informal mentoring and networking also makes the YaleLaw School experience especially useful in understanding workplace dynamicsthat may exclude female lawyers from informal networks. Part II concludeswith an explanation of our methodology, including its strengths and

shortcomings.Part III reports our findings about men's and women's experiences of and

performance in Yale Law School's classrooms. It demonstrates that women

participate in class in disproportionately low numbers and experience strongerfeelings of alienation from class and classroom discussions than do men. Weargue that professors treat female students differently from male students inways that impair women's engagement in classroom learning, and thatprofessors are responsive to certain kinds of student behavior that are morelikely to be displayed by men than women but that do not necessarily enhanceleaming or adequately reflect the skills that students need to become goodlawyers. We analyze these skills in the context of a legal profession beingtransformed from one of adversarial competition to one in which negotiation,

5. We are particularly grateful to Willow Crystal for compiling the classroom participation data andto the following former students for their work interviewing faculty members, recording participation inclass discussions, designing the student survey, and compiling the data into a report: Leslie Abrams,Kate Andrias, Aditi Bagchi, Evelyn Baltodano, Mark Barnett, Koren Bell, Jen Bird, Jeff Bowen,Kimberly Brayton, Liora Brener, Stephanie Brennan, Maura Carney, Jenny Chou, Joshua Civin,Naeemah Clark, Willow Crystal, Haninder Dhesi, Deborah Dinner, Derek Dorn, Rachel Farbiarz,Kathryn Goldberg, Aimee Hector, Alana Hoffman, Allison Hoffman, Angela Hooton, Jennifer Hunter,Michael Johnston, Sarah Jurgensen, Elizabeth Kendall, Cassidy Kesler, Kevin Kish, Sam Krasnow,Trevor Lain, Anna Levine, Heather Lewis, Susan Lin, Sarhana Livingston, Lisa Mahle, Tara Malloy,Meron Makonnen, Ashley McDonald, Anya McMurray, Avani Mehta, Ramit Mizrahi, Melissa Murray,Rajesh Nayak, Jamie O'Connell, Kimberley Pattillo, Heather Perry, Laura Provinzino, Fadia Rafeedie,Gowri Ramachandran, Daniel Reich, Daphna Renan, Anna Rich, Rebecca Richards, Nathalia Rivarola,Lisa Rubin, Sarah Russell, Reshma Saujani, Vanessa Schlueter, Amy Sepinwall, Sara Spalding,Elisabeth Steele, Julie Suk, Damali Taylor, and Shirley Udekwu.

6. See infra notes 14-19 and accompanying text.

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collaboration, and mediation are necessary to make deals, settle cases, andresolve disputes, and we question whether law schools adequately value andreward the latter category of skills.

Part IV shows how female students' disproportionately low classparticipation feeds into attenuated out-of-class interactions with professors. Wedemonstrate that male students experience greater ease and success indeveloping professionally beneficial relationships with faculty members. Atleast some male faculty members, because of discomfort, inadequate mentoringmodels, and/or fear of impropriety, create distance from female students inways that inhibit the transmission of professionally useful information andguidance. Lack of transparency about what is required to achieve high levels ofsuccess exacerbates the situation; such information is transmitted in informalinteractions from which women are more likely to be excluded. Unsurprisingly,women pay the price for this distance through underrepresentation in areaswhere faculty advocacy, mentoring, and guidance are particularly important:legal publications and academia.

Part V urges law schools to reconsider what it is they value. We advocatestructural changes, including investments in pedagogy, the promotion oftransparency, and increases in faculty diversity, which will improve the lawschool experience for all students. The recommendations aim to help lawschools realize their function as key institutions for moving the legal professionbeyond numerical parity and toward real integration.

II. AMERICAN LEGAL EDUCATION AND YALE LAW SCHOOL

A. Women's Performance: A National Perspective

To provide context for the performance of male and female students atYale Law School, we briefly survey women's performance nationally invarious fields of law and law-related professions. The data show that mencontinue to dominate the upper levels of the legal profession. Women represent19.8% of federal judges7 and 17.3% of law firm partners. 8 They comprise one-third of law school faculty members, where they are concentrated in non-

7. Stephanie Goldberg & Jessica DuLong, Federal Judgeships and the Gender vs. Ideology Debate,PERSPECTIVES (ABA Comm'n on Women in the Profession, Chicago, I1.), Summer 2002, at 10; see alsoABA COMM'N ON WOMEN IN THE PROFESSION, supra note I (reporting that 26.3% of judges on statecourts of last resort are women). The paucity of women on the bench makes it difficult to combatharmful stereotypes about women as lawyers and litigants, and even female judges experience gender-based discrimination. See Judith Resnik, Asking About Gender in Courts, 21 SIGNS 952, 957-58 (1996).

8. NALP, Women and Attorneys of Color at Law Firms-2005, http://www.nalp.org/content/index.php?pid=387 (last visited Oct. 10, 2006). Women serve as general counsel for 13.7% of Fortune500 companies. CATALYST, WOMEN IN LAW: MAKING THE CASE 7 (2001).

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tenured positions, 9 and one-third of candidates for law teaching jobs.'0 They

represent 15.1% of U.S. Senators and Congresspersons, groups dominated bylaw school graduates, and 22.8% of state legislators."

As women move up the ranks of the legal profession, their representation

plummets. Most of the men and women currently leading the professiongraduated from law school over the last three decades, when women's

representation among American law students rose from 20% (1974-1975) to

40% (1985-1986) to 48% (2001-2002). 12 Yet, cohort by cohort, women'srepresentation as judges, law firm partners, law school deans, and general

counsels at Fortune 500 companies remains far below that of their graduating

law school classes. 13 The disparities begin early in the careers of men and

women and persist beyond what law school enrollment would predict.

B. Locating the Problem in Law School

A significant body of literature has documented women's law school

experiences and performance, emphasizing their participation in class and thegrades they receive. A small but growing number of single-institution studieshave used surveys of law students, qualitative interviews, and/or analyses of

grades by gender to document how women experience and perform in law

school. 14 Following the completion of the Yale Study, Harvard Law Schoolundertook a similarly designed study which included data about grades.' 5 Other

studies have taken a broad, statistical look at women's experiences in law

9. Ass'N OF AM. LAW SCH., STATISTICAL REPORT ON LAW SCHOOL FACULTY AND CANDIDATES

FOR LAW FACULTY POSITIONS 2 (2003) (reporting that, during the 2002-2003 academic year, 34.2% of

all law school faculty were women, 25.2% of tenured professors were women, 15.5% of law school

deans were women, and 46.9% of associate professors were women).10. Id. at 10 (noting that, in 2002-2003, 32.7% of job candidates listed in the Faculty Appointments

Register were women).11. Rutgers Univ., Ctr. for Am. Women & Pol., Facts on Women Candidates and Elected Officials,

http://www.cawp.rutgers.edu/Facts.html (last visited Oct. 10, 2006).

12. Neumann, supra note 2, at 314; ABA COMM'N ON WOMEN IN THE PROFESSION, supra note I.13. See supra notes 8 and 9.14. See generally WORKING GROUP ON STUDENT EXPERIENCES, HARVARD LAW SCH., STUDY ON

WOMEN'S EXPERIENCES AT HARVARD LAW SCHOOL (Feb. 2004), available at www.law.harvard.edu/

students/experiences; Taunya Lovell Banks, Gender Bias in the Classroom, 38 J. LEGAL EDUC. 137

(1988); Allison L. Bowers, Women at the University of Texas School of Law: A Call for Action, 9 TEX.

J. WOMEN & L. 117 (2000); Celestial S.D. Cassman & Lisa R. Pruitt, A Kinder, Gentler Law School?Race, Ethnicity, Gender, and Legal Education at King Hall, 38 U.C. DAVIS L. REV. 1209 (2005); Paula

Gaber, "Just Trying to Be Human in This Place ": The Legal Education of Twenty Women, 10 YALE J.L.

& FEMINISM 165 (1998); Marsha Garrison et al., Succeeding in Law School: A Comparison of Women'sExperiences at Brooklyn Law School and the University of Pennsylvania, 3 MICH. J. GENDER & L. 515

(1996); Lani Guinier et al., Becoming Gentlemen: Women's Experiences at One Ivy League Law School,

143 U. PA. L. REV. 1 (1994); Joan M. Krauskopf, Touching the Elephant: Perceptions of Gender Issues

in Nine Law Schools, 44 J. LEGAL EDUC. 311, 314 (1994); Catherine Weiss & Louise Melling, The

Legal Education of Twenty Women, 40 STAN. L. REV. 1299, 1310 (1988).15. WORKING GROUP ON STUDENT EXPERIENCES, HARVARD LAW SCH., supra note 14.

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school.' 6 Three findings form a background to our own empirical research: (1)female students participate in law school class discussions less than malestudents; 17 (2) female students appear to earn lower grades than male students,at least at highly selective law schools;' 8 and (3) female students respond to lawschool by experiencing greater feelings of alienation and loss of confidencethan male students.' 9

The locus of our study was Yale Law School, a small, highly selectiveinstitution that prides itself on collegiality and its role as a leader in the legalacademy. The following sketch of the institution provides context for ourfindings.

Yale Law School has consistently been listed first in U.S. News and WorldReport's popular ranking of law schools. From 2004 to 2006, Yale LawSchool (YLS) accepted 6.9% of J.D. applicants. 21 The J.D. Class of 2004,whose members were first-year students at the time of the study, had a meanLSAT score of 171 out of 180 and a mean grade point average (GPA) of 3.85.22

The YLS faculty is small and homogeneous. In 2001-2002, 80% of the 63 full-time tenured faculty members were male and 89% were white. 23 The student-

16. ABA COMM'N ON WOMEN IN THE PROFESSION, DON'T JUST HEAR IT THROUGH THEGRAPEVINE: STUDYING GENDER QUESTIONS AT YOUR LAW SCHOOL 28-34 (1998); ABA COMM'N ONWOMEN IN THE PROFESSION, ELUSIVE EQUALITY: THE EXPERIENCES OF WOMEN IN LEGAL EDUCATION(1996) (describing surveys of students and grade analysis); LINDA F. WIGHTMAN, WOMEN IN LEGALEDUCATION: A COMPARISON OF THE LAW SCHOOL PERFORMANCE AND LAW SCHOOL EXPERIENCES OFWOMEN AND MEN 11 (1996); Neumann, supra note 2, at 322.

17. Banks, supra note 14; Bowers, supra note 14; Guinier et al., supra note 14; Krauskopf, supranote 14, at 314; Janet Taber et al., Gender, Legal Education, and the Legal Profession: An EmpiricalStudy of Stanford Law Students and Graduates, 40 STAN. L. REV. 1209, 1239-40 (1988); Weiss &Melling, supra note 14.

18. WORKING GROUP ON STUDENT EXPERIENCES, HARVARD LAW SCH., supra note 14; Cassman &Pruitt, supra note 14 (noting that women under-perform slightly); Guinier et. al., supra note 14;Neumann, supra note 2, at 313; cf Garrison, supra note 14 (finding no discrepancy in grades earned bymale and female students at Brooklyn Law School).

19. ABA COMM'N ON WOMEN IN THE PROFESSION, ELUSIVE EQUALITY, supra note 16; Gaber,supra note 14; Guinier et. al., supra note 14; Krauskopf, supra note 14, at 326; Weiss & Melling, supranote 14, at 1313.

20. See, e.g., America's Best Graduate Schools 2007: Top Law Schools, U.S. NEWS & WORLDREP., http://www.usnews.com/usnews/edu/grad/rankings/law/brief/lawrank brief.php (last visited Nov.6, 2006); see also George L. Priest, Reexamining the Market for Judicial Clerks and Other AssortativeMatching Markets, 22 YALE J. ON REG. 123, 179 & n.252 (2005) (noting that Yale was ranked first in2000 and that the U.S. News & World Report ranking of law schools has been "quite stable over the pastdecade"); Note, Making Docile Lawyers: An Essay on the Pacification of Law Students, Ill HARV. L.REV. 2027, 2027(1998).

21. Summary of Yale Law School Applicants in 2004, 2005, and 2006, YALE LAW SCHOOL J.D.PROGRAM 2006-2007 (Yale Law School, New Haven, Conn.), 2006, at 12.

22. Memorandum from the Yale Law School Admissions Office (on file with the authors).23. See, YALE LAW SCH., YALE LAW SCHOOL FACEBOOK, 2001-2002 (2001). Minority faculty

members included three African-American men, two Asian-American men, and two Asian-Americanwomen. Five junior tenure-track faculty members who taught that year included three white men, onewhite woman, and one Asian-American man.

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faculty ratio is now 7.8 to 1.24 As of October 1, 2001, 634 students were

enrolled, of whom 47% were women and 53% were men. 25

As a general matter, graduates of YLS enjoy substantial professional

opportunities. Upon graduation, 97% of the Class of 2001 reported having a26job. Of these students, 44% obtained judicial clerkships immediately upon

graduation, 33% worked for law firms, and the remainder found employment in

the private, non-profit, governmental, or academic sectors. 27

Yale Law School de-emphasizes traditional benchmarks by using a non-

traditional grading system. All classes are credit/fail during the first term. 28 In

subsequent terms, students receive grades of honors, pass, low pass, or fail,

with credit/fail options available or required for some classes. 29 Class rank isnot computed. 30 Thus, Yale Law School shares key characteristics with post-

law school work environments, in which interpersonal relationships, informalevaluations, and networking are important tools for advancement.

At least on paper, men and women enter Yale Law School on equal

footing, displaying no meaningful difference in performance as measured byfive pre-law school credentials: (1) undergraduate GPA and average LSAT

score; (2) selectivity of undergraduate institution; (3) undergraduate major; (4)time between undergraduate degree and law school; and (5) graduate degrees.

We analyzed average LSAT scores and average undergraduate GPAs for

men and women in the graduating class of 2004. Among this group, whichaccounts for approximately 37% of the student respondents in the YLW survey,

the average undergraduate GPA among men was 3.87 (with a range of 3.27 to

4.22) and the average LSAT was 171.31 Female students had slightly lower butsimilar numbers: the average undergraduate GPA for women was 3.82 (with arange of 3.12 to 4.11) and the average LSAT score was 170. While we were

unable to access LSAT scores and undergraduate GPAs for the YLS classes of2002 and 2003, national statistics show no significant difference between theundergraduate GPA and LSAT scores of male and female law school

applicants.32

24. ABA, OFFICIAL GUIDE TO ABA-APPROVED LAW SCHOOLS, 2007 EDITION 828 (2006).25. YALE LAW SCH., supra note 23. Of those, 588 were J.D. candidates, including 187 lL's (48%

women, 52% men), 205 2L's (52% women, 48% men), and 196 3L's (44% women, 56% men).26. First Job After Yale Law School Graduation, INTRODUCTION TO CAREER DEVELOPMENT

(Career Dev. Office, Yale Law Sch., New Haven, Conn.), July 17, 2002, at 39.27. Id.28. YALE UNIV., BULLETIN, SER. 102, No. 8, YALE LAW SCHOOL, 2006-2007, at 85 (2006),

available at http://www.yale.edu/bulletin/pdffiles/law.pdf.29. Id.30. Id.31. LSAT scores are scaled between 120 and 180.32. For the law school admissions cycle 2000-2001, women had an average undergraduate GPA of

3.21, compared to an average of 3.12 for men. Women had an average LSAT score of 150.7, comparedto an average score of 152.2 for men. Kenneth Kleinrock, Trustee, Law Sch. Admission Council,Presentation at the New York University Conference Paths to Success: The Diversification of Voice andStyle in Law School and the Legal Profession (Feb. 27, 2003).

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Nationally, it has been shown that the similarity in undergraduate GPAsamong female and male law students reflects similar performance in similarmajors. 33 The data on Yale Law School students show that similarundergraduate GPAs are earned in similar majors. 34

Female and male students also appear to come from similarly selectiveundergraduate institutions. We found that 42% of male students and 42% offemale students attended the same eight highly selective undergraduateinstitutions, 35 and we were not able to discern gender-related differences in theselectivity of the undergraduate institutions that accounted for the rest of thestudent body.

Male and female students also do not differ significantly in the amount oftime they took between completing college and starting law school. A majorityof Yale Law School students enter law school within five years of theirgraduation from college. Of these students, women wait 1.48 years on average,while men wait 1.38 years on average. Men are more likely to be in the smallminority of students who begin law school more than five years aftergraduating from college. 36

Approximately 15% of students (86 J.D. candidates in the classes of 2002,2003, and 2004) reported obtaining at least one graduate degree prior to theirlaw school matriculation. 37 Nearly equal numbers of male and female studentsobtained graduate degrees as a percentage of overall students, though men weremore likely to have doctoral degrees. Eleven percent of women and 12% ofmen report obtaining a master's degree, while 2% of women and 4% of menreport obtaining a doctoral degree prior to law school.38

To the extent that minor differences exist in the pre-law school credentialsof male and female law students, we conclude that they are insufficient toaccount for the performance disparities observed by the study. Indeed, some

33. WIGHTMAN, supra note 16, at 17. Wightman found that, nationally, female law studentsoutscored male law students in every undergraduate major except for engineering, in which the scoreswere a virtual tie. She also found that female students had somewhat higher undergraduate GPAs thanmen, a finding not replicated in our analysis of Yale Law School's Class of 2004.

34. The five most popular undergraduate majors for male and female students at Yale Law Schoolare identical-political science or politics, history, English, philosophy, and economics-and theyaccount for 54% of all majors for women and 57% of all majors for men. See Appendix A for a tablesummarizing the data.

35. See Appendix A. Our discussion of selectivity is based upon U.S. News and World Report'scollege rankings. America's Best Colleges 2007: National Universities: Top Schools, U.S. NEWS &WORLD REP., http://www.usnews.com/usnews/edu/college/rankings/brief/tinatudocbrief php (lastvisited Nov. 5, 2006). The rankings are just one (controverted) measure of a school's selectivity andrigor. We requested from the Law School Admission Council the three-year average LSAT/GPA for lawschool applicants from each undergraduate institution but were denied access to this non-publicinformation.

36. See Appendix A.37. YALE LAW SCH., supra note 23.38. Id. A doctoral degree is a useful credential for students who wish to enter legal academia, and

there may be a correlation between interest in legal academia and having obtained a doctoral degree inanother field.

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female student survey respondents used their narrative answers to report thattheir experience of disappointment and frustration was specific to law schooland had not been part of their undergraduate experience.39

C. The Relevance of Women's Experiences at Yale Law School

The findings we report are a specific incarnation of a general, widelyreported phenomenon, in which women withdraw from and under-perform inlaw school-and subsequently in their legal careers. Of course, in-class andout-of-class dynamics vary in each law school, and we will address thelimitations of our methodology in Part I.D. Our findings about women at YaleLaw School, however-lower levels of class participation, reports of increaseddissatisfaction with law school, underrepresentation in The Yale Law Journal,exclusion from informal networks-have been observed nationally, in both lawschools and in legal workplaces.4 ° Like women at other law schools, women atYale Law School report less engagement when they speak up in class, visit aprofessor's office, or seek out a faculty mentor than their male peers. This istrue irrespective of the achievement metrics-grades, law review membership,clerkships, or offers from law firms-valued at a particular law school.Keeping in mind the peculiarities of any single institution, we use the detailedanalysis of a single institution, together with the findings of other researchers,to arrive at broad-based conclusions and recommendations for improving legaleducation beyond Yale.

The Yale Study also holds lessons for understanding the trajectory ofwomen's success in the profession after law school. Yale's informal,relationship-driven networks replicate the informal mentoring networks socrucial to workplace success.4 ' Yale's small size offers opportunities forinformal instruction, collaborative work, professional development, andmentoring. These activities often grow from personal relationships that studentsbuild with faculty members. Analyzing these dynamics at Yale Law School,with attention to the differential success women experience in informalrelationship-building, networking, and mentoring, provides useful insights intosimilar dynamics that exist at law firms and other legal work environments.

39. To preserve confidentiality and anonymity, student and faculty responses gathered as part of theYale Study have not been individually cited. See infra note 44.

40. See sources cited supra note 14 (describing law school studies) and infra note 104 andaccompanying text (describing a study of legal workplaces).

41. See infra note 104 and accompanying text for a description of women's exclusion frominformal professional networks.

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Yale Journal of Law and Feminism [Vol. 18:2

D. Methodology

Our method combines qualitative and quantitative analyses with a focus onfaculty attitudes and perceptions. During the 2001-2002 academic year, wedirected a study sponsored by Yale Law Women that examined the role ofgender in faculty-student relations at Yale Law School. The study includedthree components: (1) open-ended interviews of forty-six faculty membersconducted by students;42 (2) classroom participation assessments in whichstudent-observers recorded the gender of students who spoke in class; and (3)an online survey in which students responded to multiple-choice and open-ended questions about their interactions with faculty members inside andoutside the classroom. 43 A report, available online, presents the study'sempirical findings.

44

The methodology offers thorough quantitative and qualitative data aboutwomen's experience of and performance at Yale Law School. We haveeffectively tracked female students' experiences in a small law school,including their entering credentials; their participation in class discussions;their interactions with faculty members outside class; their leadership andwriting for The Yale Law Journal; and the type of professional opportunitiesthey secure, compared to their male classmates. Insights from faculty andstudent respondents provide a window into what is going on-and why-ateach step of women's navigation of their law school education.

Our methodology also has shortcomings. First, we were unable to obtainaccess to an important performance measure: grades. 45 Other researchers have

42. At the time of the study, there were fifty-six full-time, tenured faculty members with teachingresponsibilities. Most of the senior faculty members not interviewed were on leaves of absence duringthe study. Yale Law School also employed five junior faculty members with teaching responsibilities,two of whom were also interviewed.

43. For a more detailed explanation of each component of our methodology, see Sari Bashi &Maryana Iskander, Essay, Methodology Matters, 53 J. LEGAL EDUC. 505 (2003).

44. YALE LAW WOMEN, YALE LAW SCHOOL FACULTY AND STUDENTS SPEAK ABOUT GENDER(2002), available at http://www.yale.edu/ylw. In our capacity as board members of Yale Law Women,we recruited students to help design and implement the study. The resulting report was written by acommittee of students who compiled the empirical findings but did not express opinions about the data.The opinions, analysis, and supplemental data collection in this Article, including any errors therein, aresolely the responsibility of the authors. The results of the faculty interviews, classroom participationassessments, and student surveys in the Yale Study are on file with the authors. Unless otherwise noted,all quotations and statistics cited in this Article were generated from these interviews, assessments, andsurveys. In order to preserve confidentiality and anonymity, individual responses have not been cited.

45. We requested and were denied access to aggregate student grades by gender. In 2003, we wereinformed that the faculty would undertake an internal audit to investigate any potential disparities inmen's and women's grades, and that such audit may or may not be made public. No such informationhas been released to date. Grades are significantly less important at Yale Law School than at otherinstitutions, because of its non-traditional grading system and the absence of class ranking. We foundcircumstantial, anecdotal evidence that women may be underrepresented among the students receivingthe highest grades at Yale, based on self-reported information on the resumes of teaching candidateswho graduated from Yale Law School. Of the 38 men who received a J.D. from Yale Law School andcompeted for teaching jobs in the fall of 2000, 13 candidates either listed a high percentage of "honors"grades on their teaching resumes or reported receiving writing prizes for work done in their Yale classes.

2006] Why Legal Education Is Failing Women

shown that while women generally enter law school with higher undergraduateGPAs and slightly lower LSAT scores, they appear to receive lower gradesthan their male counterparts, at least at "elite" law schools. 4 6 These studiesfound the greatest discrepancies at the upper range of performance. 47

Second, Yale Law School has a distinctive mix of pedagogical techniquesand markers of student achievement not common to other law schools. TheSocratic method--calling on students who have not volunteered to speak-isbeing questioned at many law schools, 48 but its use is particularly limited atYale Law School,49 meaning that Yale's classroom dynamics may have uniquefeatures not generalizable to other schools. Yale's emphasis on clerkships andacademic jobs, positions for which faculty advocacy is especially important,

None of their 12 female counterparts also on the teaching job market reported receiving either highgrades or a writing prize. Of course, it is possible that female teaching candidates received equally highaccolades but did not report them or that the highest-performing female students did not enter academia.

46. Guinier et al., supra note 14, at 23, found that despite entering law school with comparablecredentials, men receive higher grades, higher class rankings, and more honors than women. A study atthe University of Texas found that men consistently outperformed women in grade achievement,particularly in the first year of law school. Bowers, supra note 14, at 135-36. A nationwide Law SchoolAdmission Council study found that despite superior entering credentials, women earned slightly lowergrades than men during their first year of law school. WIGHTMAN, supra note 16, at 11. The Harvardstudy found that men were more likely than women to receive top grades. WORKING GROUP ONSTUDENT EXPERIENCES, HARVARD LAW SCH., supra note 14, at 6. See also Neumann, supra note 2, at322 ("The larger grade differentials .... and the lower law review participation at the producer schools[that train large numbers of future law professors] both hint that the pedagogical environment may beworse for women at the top-ranked schools than in legal education generally. No school has an excusefor failing to do a gender/grades study now."). But see Garrison et al., supra note 14, at 523 (finding thatwomen and men attained similar grades and academic honors); see also ABA COMM'N ON WOMEN INTHE PROFESSION, DON'T JUST HEAR IT THROUGH THE GRAPEVINE, supra note 16, at 31-33 (finding nosignificant performance disparities at the University of Illinois, University of Iowa, and ChapmanUniversity).

47. The Harvard study found that 14% of male graduates, and only 8% of female graduates,received magna cum laude honors, and that 55% of men received some form of Latin honors, comparedwith 47% of women. WORKING GROUP ON STUDENT EXPERIENCES, HARVARD LAW SCH., supra note14, at 6. The University of Pennsylvania study found that men were more than twice as likely as womento be in the top 10% of their class. Guinier et al., supra note 14, at 26. The University of Texas studysimilarly found that the gender disparity between men and women increased in the top 10% of lawschool classes, at least in the first year of law school. Bowers, supra note 14, at 144-47. The U.C. Davisstudy, which analyzed gender disparity in grades for three separate class years, found women to beslightly underperforming, with more significant disparities in the top 5% of the class, although that dataappeared to be inconclusive (for one year analyzed, women significantly outperformed men in the top5% of the class; for the other two, men outperformed women). Cassman & Pruitt, supra note 14, at1255-58. The nationwide LSAC study, however, found that the discrepancy between men and womendiminished at the top 2% of grade earners. WIGHTMAN, supra note 16, at 12.

48. See infra notes 150 and 158 and sources cited therein.49. Across the 23 classes monitored, only 28% of student comments originated from the Socratic

method; 72% of comments came from students who volunteered to speak. This figure does, however,understate the extent to which faculty members use the Socratic method. The Socratic method at Yale ismost commonly used in first-term classes, which were underrepresented among the classes monitored.

50. See supra Part Il.B (discussing the popularity of academia, clerkships, and Yale's role as a"producer" of legal academics); Priest, supra note 20, at 179 ("[i]n the year 2000, Yale Law Schoolplaced a far higher percentage of its graduating students in appellate clerkships than any other lawschool. Column 4 shows that 23.44% of the Yale graduating class secured appellate clerkships. Incomparison, Stanford ... placed 8.79%; Harvard... placed 10.14%, less than half of Yale's; andChicago... placed 13.83%... less than two-thirds of Yale's placement."); INTRODUCTION TO CAREER


is also atypical, making faculty-student relations a particularly useful"currency." In other law schools, grades or other traditional benchmarks are

likely of greater importance.Third, we did not ask students about their career goals, and we

acknowledge that underrepresentation in competitive clerkships and among

writers and board members of The Yale Law Journal is of significantly lessconcern to female students uninterested in academia or clerkships. 51

Fourth, we did not explicitly address the role of race in legal education,although we did ask student respondents to identify their racial/ethnic

background in addition to their gender.52 We note where trends emerged

reflecting differences in the experiences of white and non-white students.

Similarly, where a student's observations reflect a trend among non-whitestudents, the student is identified by gender and racial/ethnic category.53 Whilewe did not ask students to identify their sexual orientation, some respondentsdid so in the narrative answers. Constraints on our data-gathering resourcesprevented us from fully exploring the nexus between gender, race, and sexual

orientation. We recognize the importance of race, ethnicity, and sexualorientation in shaping students' law school experiences and note that thesedynamics merit further study.54

Fifth, we did not study other aspects of the legal profession-the legalcurriculum, job prospects for students after graduation, pressures from student-peers-that might have influenced the way male and female students behaveinside and outside the classroom. We observe and analyze differences in theways professors interact with male and female students and show therelationship between these differences and the ways in which men and womenexperience law school and perform in law school. Our work should be read inthe context of studies concerning law school curricula and other factors thataffect women's experience of law school.

DEVELOPMENT (Career Dev. Office, Yale Law Sch., New Haven, Conn.), 2006, at 14, 51 (noting thatfrom 39% to 53.5% of the law school's graduates clerk and that, five years after graduation, 10% of

graduates are teaching).51. Because employment data are most reliably available for the first year following graduation,

Yale's clerkship trends homogenize the beginning of most students' legal careers. Data on "first jobs"from Yale Law School's Career Development Office show that, of the graduates of the J.D. classes of

1998, 1999, and 2000, 51% clerked as their first job, 34% worked in a law firm, 7% worked in thepublic interest, 5% worked for a corporation, and 3% worked in academia. First Job After Yale Law

School Graduation, supra note 26, at 39.52. Categories included: Asian/Asian-American/Pacific Islander/South Asian; Black (non-

Hispanic)/African-American/African-Caribbean; Hispanic/Latino; White (non-Hispanic); and Other.

53. Because the number of non-white respondents was small (reflecting their representation in thestudent body), where we include quotes from minority students we do not identify them by class year, in

order to maintain confidentiality.54. Following publication of the Yale Law Women study, a committee of YLS students and faculty

published a report on racial dynamics at Yale Law School. See COMM. ON RACIAL DYNAMICS, YALELAW SCH., REPORT (2003), available at http://islandia.law.yale.edu/rd/.

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In Parts III and IV, we evaluate the empirical information generated by our

study and incorporate supplemental data on performance and credentials as abasis for analyzing the experiences of women in law schools.

III. FEWER WOMEN'S VOICES IN THE CLASSROOM5 5

The classroom is a law student's first, most frequent, and potentiallyexclusive point of contact with faculty. In the first year of law school, it is alocus of intense socialization into the legal profession. It provides anopportunity for students to engage legal material and to practice verbal agilityin discussing it.56 It is also, we found, an arena that men and women experiencedifferently and where men and women are treated differently by facultymembers.

Despite increased classroom participation by an expanding pool of femalelaw students, men continue to dominate class discussions and to use theirclassroom experiences as a springboard for building academically andprofessionally rewarding relationships with faculty members. Students andfaculty first size each other up in the classroom and may seek one another outbased on their interactions in class. Diminished or less effective classroomparticipation by women feeds into diminished or less effective out-of-classinteractions between faculty members and female students. It is also likely tofeed into feelings of alienation that deflate female students' enthusiasm andimpair performance in law school. Understanding the gendered aspects ofclassroom dynamics is crucial to designing interventions that will remove thebarriers female students currently face in engaging class materials fully,building relationships with faculty members, and realizing the opportunitiesthat law school presents.

This Part shows that some faculty members (1) treat female studentsdifferently from male students in ways that inhibit women's engagement inclassroom discussions; and (2) reward behaviors more likely to be foundamong male students, even though those behaviors reflect only a narrow subsetof the skills needed for success in today's practice of law.

55. All classroom participation, faculty interview, and student survey data cited herein weregenerated from data collected as part of the Yale Study.

56. Stephanie M. Wildman, The Question of Silence: Techniques to Ensure Full ClassParticipation, 38 J. LEGAL EDUC. 147, 150 (1988).

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A. Law School Classes for Men and Women

1. Men and Women Cluster in Different Classes

Before we discuss what takes place inside classrooms, we examine theclasses in which students choose to enroll. Data from a single semester, Spring2002, suggest some sorting by gender in students' choice of classes.5 7

First, female students clustered in classes taught by women. 58 Second, maleand female students clustered by subject matter, with men choosing businesslaw courses and women choosing courses addressing discrimination orgender. 59 Among non-clinical courses, women were very slightly over-represented, relative to their proportion of the student body, in large classes. 60

Third, women were more likely to choose clinical courses and clinicalindependent study programs. Clinics offer an alternative classroomenvironment, including sessions with supervising attorneys, client contact, and

57. J.D. students chose among twelve clinical courses and seventy-three non-clinical courses.Eleven female professors taught seventeen classes, including two clinical courses, and forty-eight maleprofessors taught sixty-eight courses, including ten clinical courses. J.D. students have no courserequirements after their first semester, but they must take Criminal Law at some point before theygraduate. Criminal Law, taught by a variety of faculty members, is offered at least once each semester.We do not include information on two courses open only to L.L.M. and J.S.D. students. We also do notinclude information about the limited number of classes outside the law school that J.D. candidates maytake. Students must carry an average of at least 13 credit hours after their first semester, generallybetween three and five courses. ,

58. While women constituted 47% of the J.D. student population, they represented 58% of thestudents enrolled in classes or independent study opportunities taught by female professors. womenrepresented 44% of the students enrolled in classes or independent study opportnities taught by maleprofessors.

59. Women represented 37% of the students enrolled in the eleven business law courses offered.Female professors taught four of those classes, and male professors taught the remaining seven. Thebusiness classes included: Business Crime; Securities Fraud; Law, Economics, and Organizations;Secured Transactions; the Economic History of Law and Business; Antitrust; International CommercialArbitration; the Law and Economics of Corporate Control; Securities Regulation; and two sections ofBusiness Organizations, the basic corporate law class. The only business class in which womenoutnumbered men was the section of Business Organizations taught by a female professor, in which61% of the law school students enrolled were female. In contrast, women represented 63% of thestudents enrolled in four courses addressing gender or discrimination, two of which were taught by menand two of which were taught by women. It is interesting to note that male and female professors alsocluster by subject matter. See Marjorie E. Komhauser, Rooms of Their Own: An Empirical Study ofOccupational Segregation by Gender Among Law Professors, 73 UMKC L. REV. 293 (2005).

60. Women constituted 49% of classes with more than fifty students, compared with theirrepresentation as 47% of the student body. Women were very slightly underrepresented in classes withfewer than fifty students, constituting 44% of those students. Fifteen non-clinical classes had anenrollment of more than fifty students each (for an aggregate enrollment of 1106), including two coursestaught by female professors; fifty-eight non-clinical classes contained fifty or fewer students each (for anaggregate enrollment of 1152).

61. Thirty-six percent of all female students, compared to 29% of male students, enrolled in clinicsin the Spring of 2002. See also supra note 4 (discussing women's increased tendency to take publicinterest jobs).

62. Fifty-eight percent of the students enrolled in clinical independent study programs were female,although just 47% of the J.D. class was female.


work assignments. These selections are interesting in light of the fact thatwomen participate less than men in traditional lecture-class environments,particularly in classes taught by male professors, as discussed below.

2. Women Participate Less in Law School Classes

Consistent with the findings of earlier studies, we found that womenparticipate in class discussions less than men. Fewer overall classroomcomments, questions, and responses come from women, and fewer individualwomen participate in each class. Women's participation increases in classestaught by female professors. Women's participation decreases, however, inlarge classes and in classes where there is more student discussion overall. Wearrived at these findings from three sources: data from observers who recordedthe participation levels of men and women in law school classes, interviewswith faculty members regarding their observations about class participation bymale and female students, and survey responses in which students reportedtheir feelings and observations about classroom participation. We begin bypresenting the participation data as an objective inquiry into participation levelsand then explore responses from faculty and students to shed light on thedynamics behind the data.

a. Class Participation Data

After undergoing a training session, students monitored class participationduring a two-week period in twenty-five classes in which they were enrolled.Most classes had two monitors, and where discrepancies existed in theirreports, they were minor, suggesting that observer bias did not play a majorrole in determining the results.63 Thirty-one of thirty-eight observers werefemale.64 The gender discrepancies we report are statistically significant.65

Observations show that male students dominate classroom discussions,particularly in large classes, in loud classes, and in classes taught by men.During the period in which student observers recorded data about classroom

63. Where discrepancies occurred, the figures were averaged.64. Where a male and female student monitored the same class, we did not notice a larger

discrepancy in the two reports, compared with discrepancies in reports by same-sex monitoring pairs.65. Measures of statistical significance are reported in parentheses following each cited measure of

participation. The percentage by which we measured women's comments to be underrepresented inclassroom discussions (38%) is less than the percentage that Weiss and Melling measured a decade anda half earlier (63%). Weiss & Melling, supra note 14, app. b at 1363. A table providing measures ofstatistical significance for the classroom monitoring data is available on the Yale Journal of Law andFeminism website at http://www.yale.edu/lawnfem/. See YALE LAW WOMEN, supra note 44, app. b, forthe raw data on classroom participation. For details about our methodology and survey instruments, seeBashi & Iskander, supra note 43; and YALE LAW WOMEN, supra note 44, app. b at 90-100. We aregrateful to Nasser Zakariya, Fellow, Yale Center for the Study of Corporate Law, and tan Ayres,William K. Townsend Professor of Law, Yale Law School, for their calculations and regressionanalyses.

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participation, the student body at YLS was 47% female and 53% male.66 Theaverage number of times that a male student spoke in class was 38% higherthan the average number of times that a female student spoke in class (Zstatistic= 12.4).67 That disparity was reduced by 24% (that is, the ratio of maleto female participation was reduced to 1.14) in classes taught by femaleprofessors (T statistic=2.768; P value=0.007). In loud classes-classes withgreater overall class participation-the gender disparity increased by 52% (Tstatistic=2.664; P value=0.009). In large classes--classes with more than fiftystudents-the disparity increased by thirty-one percentage points (Tstatistic=2.287; P value=0.024). In the three (out of twenty-five) classes inwhich women "dominated" 69-- that is, their overall participation outstrippedthat of men-they dominated to a lesser degree.70

Men are also more likely to volunteer to participate. On average, malestudents volunteered to speak 40% more than female students (Zstatistic=13.17).71 Because 72% of classroom interactions originate with

72students volunteering to speak, the difference in the rates at which studentsvolunteer-and/or the rates at which professors call on those who dovolunteer-accounts for much of the disparity in overall participation.

The above data refer to average participation rates, but the student-observers also recorded how many individual men and women spoke in a givenclass. Their records show that for a given class, the average female student is29% more likely not to speak at all, compared to the average male student (Zstatistic= 12.48). Within the pool of students who spoke in class at least once,however, there was no significant difference between the average number of

66. See YALE LAW WOMEN, supra note 44, app. b at 90-98, for overall enrollment information bygender and class year and enrollment information for each course monitored by gender. The monitoringforms reflect attempts to gather more information than we report here. Student observers were asked torecord more detailed information about the nature of classroom interactions (whether students askedquestions or made comments, how professors responded), but inconsistencies in characterizing theinteractions make the data unreliable.

67. In other words, the ratio of male to female participation was 1.38.68. The effect of larger class size on the disparity in participation rates is particularly dramatic

because the "larger" classes are not that large. All classes monitored contained fewer than 100 students,and the average class size of the twelve "large classes" monitored-classes with more than fiftystudents-was sixty-seven. The average class size of the eleven "small classes" monitored was thirty-two, including three first-year seminar courses with seventeen to eighteen students.

69. Those three courses included a first-year small group led by a male professor with 46% femaleenrollment, a first-year lecture course led by a male professor with 47% female enrollment, and an upperlevel lecture course led by a female professor with 47% female enrollment.

70. In thirteen courses, men spoke more than women to a statistically significant degree (rangingfrom 20% more than women to 921% more than women), and in three courses, women spoke more thanmen to a statistically significant degree (ranging from 20% more than men to 90% more than men).

71. In fourteen courses, men volunteered more than women to a statistically significant degree(ranging from 18% more than women to 787% more than women), and in three courses, womenvolunteered more than men to a statistically significant degree (ranging from 20% more than men to56% more than men).

72. See supra note 49.

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times that men and women spoke. In other words, women who speak at leastonce, on average, speak about as often as their male counterparts.

The data show that faculty members are more likely to "compel" men thanwomen to speak in class by calling on those who do not volunteer. The averagenumber of times that a male student is asked to speak without volunteering("cold calling") is 17% higher than the average number of times that a femalestudent is asked to speak without volunteering (Z statistic=4.5 1).

We offer the following table as a summary:

Ratio of male to female total 1.38comments in class:Ratio of male to female 1.40volunteered comments in class:Factor that increases female Female professorstudent participation:Factors that decrease female Large classes (50+ students)student participation: Loud classes (classes in which there is

more overall student participation)Silence Factor: Women are 29% more likely to remain

silent in class. Women who speak atleast once, however, on average, speakas often as men who speak at leastonce.

b. Faculty Observations

Faculty interviewees observed differences in the levels and styles ofparticipation by gender. Many reported that women's participation hasimproved significantly as women have enrolled in Yale Law School in greaternumbers and that their own awareness of gender dynamics in the classroom hasspurred them to take steps to improve women's participation. Facultymembers' descriptions of classroom behavior are useful not only inunderstanding how faculty perceive the problem, but also, coupled with theobservational data, in providing insight into the male "dominance" ofclassroom discussions.

While reporting steady improvement in classroom participation, facultymembers reported that male students tend to speak more often, more quickly,and in a more aggressive manner than female students, and that male studentstend to speak for a longer period of time. They reported that women are morelikely to ask discrete questions or offer discrete answers, rather than engage inextensive commentary. They characterize "female" styles of participation-

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styles they see more frequently among women than among men-asdeferential, apologetic, polite, self-effacing, non-assertive, and non-argumentative. One male professor observed that men are more likely to "jumpin and interrupt in lectures." A female professor observed a tendency amongfemale students to preface their questions with self-deprecating caveats such as,"I'm sorry, I didn't get this.. ." She recalled one student who would prefaceher questions with, "I'm really stupid, but .. ." even though that student wrotean outstanding exam in the class.

Faculty interviewees, who were not shown the class participation data priorto or during their interviews, made observations consistent with the data: inlarger classes, men are more likely to dominate class discussions and morelikely to volunteer. Many faculty members cited the above observations as areason they instituted managed forms of classroom participation and othermeasures to increase women's participation in class. One male professor started"cold-calling" after noticing that few women and few students of color werevolunteering to speak. He said that although fewer women and students of colorraised their hands, there were a significant number who, "by the looks on theirfaces, I could tell they knew what I was asking, but they didn't volunteer."Some professors reported trying to spend more time on a female student whoraises her hand or trying to spend more time with hesitant students of either

gender. A male professor observed that women tend to put their hands downmore quickly after initially raising them. Faculty members did not report thatwomen students are less prepared for class; one female professor noted thatwhile volunteers in her class are disproportionately men, male and femalestudents demonstrate the same level of preparation, confidence, andintelligence when she calls on them without warning.

Consistently, and with varying levels of diplomacy, faculty membersreported that, to the extent that a small group of students dominates classroomdiscussions, that group tends to be male. Faculty members said that womentend to take on leadership roles later in the class and are less likely to dominateconversations. Using the ubiquitous colloquial term for students who dominateconversations, faculty members reported that "gunners" tend to be male. Amale professor made the blunt estimation that, "[T]hree-fourths of the mostdominating, 'space-consuming' students are male-they seem to be less likelyto notice when they're dominating." Interviewees observed an inverserelationship between class size and heterogeneity among discussion participantsand noted that men are more likely than women to "rush the podium"-toapproach the professor immediately after class to follow up on ideas orquestions.73

73. This observation is shared by student respondents and has been documented in the literature.Kathleen A. Sullivan, Self-Disclosure in Clinical Relationships, 27 IND. L. REv. 115, 145 (1993) (noting

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c. Student Survey Responses

Student responses to survey questions about levels and styles of classroomparticipation mirrored perceptions offered by faculty and recorded by studentobservers. Of the 263 students surveyed, 64% believed that men participatemore than women in class, 33% believed that men and women participateequally in class, and 2% believed that women participate more. Womenreported more of a difference than men. 74 Students reiterated concerns voicedby faculty that women and minorities seem to hold back their comments, whilemen, particularly white men, are more likely to volunteer to participate,whether or not they have something interesting or insightful to say.

B. Why Do Women Speak Less in Class?

We offer two explanations to account for the different behaviors of maleand female students in law school classes. First, faculty members treatcomments by female students differently from comments by male students inways that inhibit female participation in class. Much of this treatment stemsfrom hesitation on the part of some faculty members to challenge women or toengage their ideas. Second, faculty members run their classes in ways that givemore attention to students who speak more quickly and unequivocally-behaviors that are more often displayed by men than by women. Students whodisplay what we call "self-regulation"--who monitor their own comments outof awareness of others in the class-are less likely to be given the opportunityto speak, and women are more likely to self-regulate.

1. Professors Engage Female Students Less Than Male Students

Within the classroom, male faculty members are less likely to push orchallenge women's ideas, to joke with them, or otherwise to integrate them intoclass discussions. The strongest indications of disparate treatment come fromstudent responses to the question, "Do you notice a difference in the way yourprofessors address men's versus women's comments or questions?" Seventy-two percent of student respondents said yes. Sixty-eight percent of malestudents and 76% of female students observed a difference. These figuresunderestimate the percentage of students who believe that at least some facultymembers treat women's comments differently from men's comments, becausean additional 8% of respondents selected "no" when asked if they observed

that white, heterosexual, male students are much more likely than students of color, gay students, andwomen to approach mostly white, male, heterosexual faculty members).

74. Asked to rank participation on a scale of I to 5, with I indicating that men speak more thanwomen, and 5 indicating that women speak more than men, female students give an average answer of2.16, while male students give an average answer of 2.50 (i.e. closer to the "neutral" number of 3).

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different treatment, but then went on to describe different treatment by at least

some faculty members in an open-ended follow-up question. 75

Seventy-seven students chose to respond to the open-ended question, "Ifyes, what are the differences you notice?" Although students were not given alist of responses from which to select, four types of responses appearedrepeatedly: (1) faculty members are less likely to press, challenge, or "fight"

with female students; 76 (2) professors pay less attention to or are moredismissive of women's comments; 77 (3) different treatment occurred onlysometimes and/or was applied only by some faculty members; 78 and (4) intreating male and female students differently, professors were responding todifferences in the demeanor of male and female students.

Students characterized faculty members' treatment of women as gentler ormore patronizing, more dismissive or more considerate, less serious or lessharsh, but a common thread was the observation that faculty members spendless time on women's comments. For example, a female 2L (second-yearstudent) selected "no" to the question of whether she observes a difference

between the way professors treat comments by men and women, but adds thefollowing observation: "Often, female students' comments seem to just hangthere, the woman speaks, the professor either just nods or moves on to the next

student. On the other hand, these same professors tend to engage more withmen, attribute more to men, and name men more." A male IL (first-year

student) reported, "Some professors seem to either patronize women moreoften or are outwardly tougher on the men-will hang them out to dry quickerand keep them there." A female 2L complained about a professor who pressedmale students on their comments "but is a total pussycat with the women." Sheadded, "It's as if he thinks we couldn't handle it. It's really insulting."

Other students suggested that where professors "play favorites,"-singleout a few students for increased scrutiny, attention, or questioning-thosestudents tend to be male. A female IL observed, "[C]ertain professors cultivatean expectation in a select few that they can speak regularly and withoutinterruption. Often, these students are male." Another common observationwas that faculty members are less likely to single out female students orincorporate them into their classroom routines, particularly in joking or teasingways. As a male 2L noted, "Some professors like to make certain students

75. If we recalibrate the numbers to reflect these twenty responses, the result is that 79% of student

respondents, 72% of men and 87% of women, observe some difference in the way at least some facultymembers treat men versus women.

76. Forty-three percent of students supplying narrative answers gave this response, and somecharacterized faculty treatment of women as patronizing.

77. Twenty-seven percent of students supplying narrative answers gave this response, and six ofthese respondents, all female students, expressed the lack of attention as faculty members being lesslikely to use or remember women's names.

78. Forty-eight percent of students supplying narrative answers gave this response.79. Ten percent of students supplying narrative answers gave this response.

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semester-long 'characters' married to particular (usually under-voiced and/orconservative) views. I have never seen a woman become such a 'character."' Afemale 2L suggested that female students' diminished out-of-class relationshipswith faculty members lead faculty members to pay less attention to women inclass: "In most of my classes, male students have relationships with theprofessors outside of class, and as a result, their views are given more play thanthose of other students."

Students' observations are consistent with disclosures by some malefaculty members that they take care not to offend or "tease" female students bytreating them the way they treat male students, such as referring to students byname and using them as part of factual examples in class.80

Student respondents suggested an additional explanation for the diminishedvolunteer participation by women: some students reported that faculty membersare less likely to call on women who raise their hands. 81

The participation data are instructive, too, in light of reports from facultyinterviewees and student respondents. Observers recorded data showing thatprofessors are 17% less likely to "compel" a female student to speak than tocall on a male student who has not raised his hand. The classes monitoredinclude those in which professors used a strict "Socratic" method of cold-calling, classes in which professors gave students advance notice that theywould be "on call" for a particular day or topic, classes in which professorsonly called on students who volunteered to participate, and classes employing amix of the above methods. 82 Reduced volunteer participation may contribute toreduced compelled participation, if professors are less likely to call socraticallyon students who have not already volunteered to speak, because they do notknow whether those students can "handle" the challenge. 83 These data from

80. Interestingly, after the findings of the study were presented to faculty and students, one maleprofessor decided to experiment with "playfully insulting" female students, too. The professor had apractice of singling out students in his lecture class to feature prominently in hypothetical fact patternsillustrating legal principles. The professor would make up examples in which the "starring" studentengaged in various kinds of illegal or irresponsible behavior which would then be analyzed under therelevant law. He would use only white male students as examples (generally students he knew but hadnot necessarily consulted in advance), privately expressing concern that female students or students ofcolor might take offense if he used their names. In the semester following the publication of the YLWreport, he obtained permission from a female student to cite her as an example, and he mentioned hername, too, as the protagonist in classroom examples illustrating behavior that would have adverse legalconsequences. The female student reported to the authors her feeling of recognition in having otherstudents come up to her after class, congratulate her on her "starring" role in the classroom cast, andremark that it was the first time a woman played such a role. Interview with male professor, Yale LawSchool, in New Haven, Conn. (Spring 2002).

81. Observers of classroom participation did not record how many students raised their hands butwere not recognized.

82. While some "Socratic" interactions originate in professors calling student names from aprepared class list, other instances of compelled speech are spontaneous, as when professors aimquestions at repeat players who have not volunteered to speak.

83. Indeed, if male faculty members are hesitant to challenge female students, they may beparticularly hesitant to compel silent female students to speak. On the other hand, not being called onmakes students less likely to volunteer. Some professors report that they reinstituted cold-calling in

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various sources constitute strong evidence of disparate treatment-regardless ofhow well-meaning professors may be.

Much of this different treatment apparently stems from a desire amongfaculty members to be sensitive to what they perceive female students can orwant to endure. A male professor said that he is more ready to "fight" withmale students than with female students in class discussions. He attributed thisdifference to his own socialization (as someone from an older generation) andalso to the fact that men make more contentious comments than women.Another faculty member said he is more comfortable teasing or joking withmale students, because he assumes that women are vulnerable to feelinginsulted by such interactions unless their behavior signals otherwise. Heacknowledged that the net result is that he challenges women less and engagestheir comments less, out of concern not to offend.

These pedagogical practices help explain women's decreased participationin class, both in terms of frequency and observed length of comments. Suchtreatment may also affect their levels of confidence and engagement with the

84material . When professors fail to follow up on women's comments, hesitateto press female students, and otherwise spend less time on women's commentsin the classroom, women are less visible, less prominent, and less integratedinto the classroom environment. They establish less of a rapport with facultymembers, reflected in the fact that, in contrast to male students, most femalestudents do not consider classroom interactions to be a basis for developingmentoring relationships.

85

Whether it stems from male faculty members' discomfort, deprecation,politeness, or any other source, engaging women's comments less vigorouslythan men's comments under-engages women. It makes them less prominent inthe class; it distances them from the material under discussion; it hinders theirdevelopment of out-of-class relationships with faculty members; and it deprivesthe class of their comments and thoughts.

2. Law School Professors Reward Behaviors More Commonly Displayedby Men

A second factor in suppressing women's participation is the manner inwhich faculty members allocate attention and class "air time" to the studentswho demand it most loudly and most often. Faculty members appear to bemore responsive to a style of speaking that is more often found among menthan among women, even though it does not necessarily reflect the oral skillsmost useful to lawyers. Faculty and students overwhelmingly observed that

response to the silence of female students and students of color. According to these faculty members,once students were compelled to speak, they began to volunteer.

84. Wildman, supra note 56, at 150.85. See infra Part IV.

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women tend to be slower to raise their hands and less likely to dominateclassroom discussions. Some respondents interpreted these behaviors as a lackof confidence among female students. We suggest an alternative interpretation:women are more likely to be aware of their classroom environment and toregulate their own participation in order to listen and to give others anopportunity to speak.

Respondents expressed agreement with the notion that men and womenbehave differently, although they differ about how to characterize thosedifferences. Some believed that men are generally more confident. Eighty-ninepercent of female student respondents, compared with 40% of male studentrespondents, expressed agreement with a quotation by a faculty member thatincluded the statement: "Male students tend to have more confidence inthemselves as public speakers and feel more comfortable speaking in largeclasses, even when the point they are making is minor."86 A male 2L perceivedthat "men are more arrogant and feel their comments deserve public reception,"while another male 2L observed that "women do seem less interested in hearingthemselves speak." Some student respondents attributed the difference togender socialization, while other students and some faculty members greetedwith skepticism the claim that female law students are less confident oraggressive, noting that women have had to demonstrate their assertiveness andambition in order to be accepted to Yale Law School. A male professorobserved that, in class, "[s]ome women will show a sense of deference,apology. It isn't a lack of self confidence, but it is an over-politeness. They arequite able to hold their own, but they will be tentative." A female ILcomplained that law school rewards authoritative, unequivocal assertions,irrespective of their accuracy: "Women students are encouraged to makestatements as if they were completely isolated bits of truth, rather than beingallowed the space and time to bring a cluster of meanings to the table."

Other behaviors, sometimes attributed to diminished confidence oraggression, may be a function of heightened awareness of the perceived needsof others. For example, the tendency of women, as observed by a male facultymember, to preface their comments with "so and so already made this pointbut ...." may be an attempt to include and relate to other participants in thediscussion. A similar dynamic may be behind the commonly-observedphenomenon that women are less likely than men to interrupt classroomdiscussions.

Narrative responses suggest that women tend to regulate their comments,particularly in large classes or in classes where air time is scarce and where

86. The quotation also included the claim that women experience "performance anxiety" in largeclasses. See YALE LAW WOMEN, supra note 44, app. c, at 105. Due to a design flaw in the survey, thequotation included multiple pieces of information, such that it is not clear which parts of the statementsurvey respondents ratified. Respondents were not given an opportunity to suggest or endorse alternativeexplanations for disproportionately low class participation by women.

20061


others wish to participate. Professors appear to reward "space-grabbing"speakers in a way that women (and some men) find distasteful. A female 3Lwrote, "The annoying students most often tend to be male-but this isn'tsomething I'd be keen to emulate, so it doesn't bother me that women are moreaware of the people around them and the reactions of their peers to over-zealousness."87 A female IL recognized that professors respond positively toauthoritative assertions by male students but said she has no desire to mimicthem:

[I]t's acceptable to walk up and show off your smarts, but not toengage. Why professors would want to hear undeveloped pet theoriesfrom self-aggrandizing students rather than taking a few moments toengage with students is beyond me. Additionally, that differencedefinitely favors men who are more likely to try to aggressively provetheir intelligence.

Faculty members may not really enjoy hearing from "self-aggrandizing"students, but they run their classes in ways that allow a small group of studentsto dominate, thus rewarding those students with more of the class's time.Because faculty members tolerate (primarily male) students who speak

frequently and disproportionately in class discussions, students perceive thatfaculty members welcome such behavior.

Feminist scholars disagree as to why male students are more likely thanfemale students to exhibit "space-grabbing" behavior. Some scholars argue thatwomen are raised with a sense of self more oriented to relation and affiliation

and thus temper their individualism with regard for others. 88 Indeed, feministscholars have interpreted patterns of behavior more commonly observed amongwomen than men-qualifications of statements and rising inflections at the endof sentences, for example-as an expression of contextual reasoning89 or adesire to include others in the discussion by leaving room for differences ofopinion.90 Other feminist scholars argue that institutions create gender by

cultivating different kinds of behaviors for men and women.9 I We express no

87. Of course, students of either gender may experience pressure from peers not to appear over-eager. Previous studies have suggested that women who speak out in class and aggressively pursueopportunities are singled out for ridicule in a way that male students are not. See, e.g., Guinier et al.,supra note 14, at 52. The "anti-gunner" norm is not, however, limited to women.

88. See, e.g., CAROL GILLIGAN, IN A DIFFERENT VOICE (1982); Carrie Menkel-Meadow, Portia ina Different Voice: Speculations on a Women 's Lawyering Process, I BERKELEY WOMEN'S L.J. 39, 40(1985). Robin West attributes the difference to women's connectedness through biological functions likepregnancy and nursing. Robin West, Jurisprudence and Gender, 55 U. CHI. L. REV. 1 (1988). Thesefindings have been vigorously contested. See, e.g., CATHARINE MACKINNON, Difference andDominance: On Sex Discrimination, in FEMINISM UNMODIFIED: DISCOURSES ON LIFE AND LAW 32(1987).

89. See GILLIGAN, supra note 88, at 16-17; Sullivan, supra note 73, at 150-51 (applying Gilligan'stheory to legal education and criticizing law schools for focusing too narrowly on de-contextualized,abstract analysis).

90. See, e.g., KATHY E. FERGUSON, THE FEMINIST CASE AGAINST BUREAUCRACY 96 (1984).91. ROSABETH Moss KANTER, MEN AND WOMEN OF THE CORPORATION (2d ed. 1993).

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opinion on the source of the difference but, instead, ask why professors value

some behaviors and not others. We claim that the current practice of rewardingloud, emphatic classroom participation not only has an adverse impact onfemale students, but is also a poor pedagogical practice for all students.

Encouraging and rewarding repeated, emphatically-phrased comments

from a small group of students ensures that men will dominate class discussionsand reap benefits in the form of increased engagement with law as a subjectmatter and increased attention from faculty members as teachers and mentors.A volunteer regime exacerbates this dynamic. Of course, not all women self-

regulate, and not all men vie for air-time, but the differences are significantenough to lead to the male domination of class discussions observed by theYale Study and by its predecessors and successors at other law schools. Manyprofessors disavow a connection between "gunners"--(primarily male)students who tend to dominate a discussion-and academic excellence. As onemale professor delicately puts it, "[S]ometimes, in class, when there is a smallgroup of very vocal students, those students are more often male than female.And that small group of vocal students does not necessarily represent thestrongest students in the class." Practices that tolerate, cultivate, and/or reward

domination of class discussion tend to favor male students over femalestudents, reflecting too narrow a view of desirable oral presentation skills. Ofcourse, some lawyerly tasks, particularly court appearances, call for quickresponses and vigorous, unequivocal argumentation. But lawyers spend farmore time negotiating, mediating, and working collaboratively 92-practices

that require listening, attention to nuance, and considered responses, whichshould be encouraged as well.

C. Consequences of Diminished Classroom Participation

Silence or diminished participation for women in the classroom hasconsequences that are difficult to measure. We focus on two observed results ofwomen's diminished participation in the classroom, both of which hinderwomen's professional development: (1) Diminished participation in the

classroom impairs the ability of female students to build valuable relationshipswith faculty members; and (2) diminished participation in the classroomdeprives women of opportunities to engage and debate ideas, to practice legalarguments, and to develop confidence in their abilities.

92. See infra notes 150-153 and accompanying text.

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1. Classroom Performance Is a Springboard to Relationships withFaculty

Yale Law School may be unusual for its pronounced emphasis on faculty-student interactions, but in any law school, relationships with faculty membersprovide students with information, guidance, encouragement, mentoring, andprofessional credentials and contacts. Yale Law School's small size (about 190students per J.D. class), aspirations toward collegiality, emphasis on academia,and lack of formal benchmarks make faculty-student interactions a particularlysignificant part of students' legal education and a particularly important factorin enhancing professional opportunities. 93 Relationships begin in the classroom,where students first encounter faculty members, and faculty members developimpressions of their students' abilities. Exams come only at the end of thesemester,94 and in the eyes of some faculty members, performance in classroomdiscussions rivals exam quality as a measure of achievement. 95

Male students are more likely to use classroom participation as thefoundation for relationships with members of the faculty. As Part IV willdemonstrate, men form closer relationships with faculty outside the classroom.The difference begins in the classroom, where, on average, men participatemore than women. It continues in the moments after class, when male studentsare more likely than female students to approach professors with questions andcomments.

96

Responses from female students indicate that they are insecure about theirability to build rapport with faculty members and hesitant to approach them forfear that faculty members will not know who they are. Compared to malestudents, female students are less able to leverage the opportunities that classdiscussion creates for building professionally valuable relationships withfaculty members. Indeed, some faculty interviewees observed that women areless persistent or less interested in pursuing projects and relationships withthem. We hypothesize that faculty members may interpret women's silence inclass-and the distance it creates from the professor leading the class-as lackof interest in other kinds of interactions with the professor.

93. See supra Part ll.B.94. The grading system, described in Part I.B, supra, tends to homogenize most students'

evaluations-a failing grade or even a "low pass" is very unusual, and grades of "pass" are awarded as amatter of course.

95. In classes for which students write papers, faculty members view paper quality as an importantmeasure of achievement. However, most large classes-the classes where women's participation is thelowest-require exams, not papers.

96. Of seven possible answers, male students listed class participation as their third-most effectiveway of building mentoring relationships with faculty members, while female students listed it as one ofthe least effective ways. See Appendix B; see also infra Part IV.A.

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2. Silence in Class Reflects Lost Opportunities and Alienation

A second consequence of women's diminished classroom participation isthe effect it has on women's attitudes toward law school, the law, and theirabilities to succeed professionally. At best, women's disproportionately lowclassroom participation deprives them of an opportunity to develop confidencein their verbal skills and to engage the subject matter.97 At worst, it fosters andis a product of alienation from and even hostility toward law and law school.Krauskopf found that 25% of women, compared to 15% of men, experienced aloss of confidence as a result of their classroom experiences." Guinier et al. 99

and Weiss and Melling100 provide qualitative demonstrations of the humiliationand damage to self-esteem that results from women's experiences in theclassroom. Garrison et al., who found no significant difference between thegrades that men and women received at Brooklyn Law School, found aconnection between female law students' lower rates of voluntary classroomparticipation, their lower rates of satisfaction with their voluntary classroomparticipation, and their higher rates of reported anxiety, depression, and relatedbehaviors.

101

If class discussion is a game, women are more likely to remain on thebench. Past studies suggest that their silence is far from neutral. It may reflectalienation, insecurity, and/or hostility. Law School Admission Council (LSAC)survey data suggest that female law students are more likely to be insecureabout their public speaking skills than male law students, 1

02 creating a chicken-

and-egg problem-where women do not participate in class, they lose anopportunity to gain confidence in those skills.

In the next Part, we discuss how women's diminished classroomparticipation feeds into diminished ability to create professionally rewardingrelationships and opportunities outside the classroom. We observed theseinteractions among students and faculty at Yale Law School, but understandingthem is also useful in understanding how women and men interact in theworkplace, where, in law as in other fields, professional success is linked tonetworking, mentoring, and other kinds of relationships with (mostly male)superiors and colleagues.

97. Susan L. Brody, Teaching Skills and Values During the Law School Years, in THE MACCRATEREPORT: BUILDING THE EDUCATIONAL CONTINUUM 22, 22 (Joan S. Howland & William H. Lindbergeds., 1993); Wildman, supra note 56, at 150.

98. Krauskopf, supra note 14, at 326.99. Guinier, supra note 14, at 43-44.100. Weiss & Melling, supra note 14, at 1333-34.101. Garrison et al., supra note 14, at 531-32.102. WIGHTMAN, supra note 16, at 56 tbl.27.

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IV. FEWER WOMEN FIND FACULTY MENTORS AND ADVOCATES10 3

We examine interactions outside the classroom at Yale Law School as alocus of informal instruction, collaborative work, professional development,and mentoring. Faculty-student relations outside the classroom form animportant part of legal education in any law school, but their influence isparticularly prominent in small schools. A student's educational experience andsense of herself as a lawyer is enhanced by the encouragement and affirmationof a faculty mentor or advocate. Students also benefit from concrete advicefrom faculty members about how to succeed in law school and in theirsubsequent legal careers. Developing relationships with law professors is partof a student's socialization into the legal profession.

Exploring the formation and nature of these relationships-and the rolethat gender plays in shaping them-has implications beyond the law schoolcontext, because these relationships mimic interactions that are important tolegal jobs of all kinds. In particular, Yale Law School's informal atmosphere

and lack of institutionalized benchmarks replicate key aspects of the legalprofession that male and female students will join upon graduating from lawschool. In a recent study of alumnae from elite law schools, a majority offemale lawyers cited lack of mentoring opportunities and exclusion frominformal networks within their organizations as significant barriers to theadvancement of women lawyers.'04 Women's status as outsiders is not uniqueto law school, but understanding and changing those dynamics early willsocialize the next generation of lawyers into a more egalitarian work world.

In this Part, we describe differences in the way male and female studentsrelate to faculty members outside class, from the first approach to thedevelopment of mentoring relationships. We show that female students are lesslikely than male students to build close, professionally and educationallybeneficial relationships with faculty members. We offer a number ofexplanations to account for the differences between the way male and femalestudents interact with faculty.

103. All classroom participation, faculty interview, and student survey data cited herein wasgenerated from data collected as part of the Yale Study.

104. CATALYST, supra note 8, at 18. The report shows that 53% of women, compared with 21% ofmen, cite exclusion from informal networks within their organizations as a barrier to the advancement ofwomen lawyers. Fifty-two percent of women, compared with 29% of men, cite the lack of mentoringopportunities as a barrier to the advancement of women lawyers. Id. The lawyers sampled received theirlaw degrees from Berkeley, Columbia, Harvard, Michigan, and Yale between 1970 and 1999. Id. at 9-

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A. Approaching Professors Outside the Classroom

We examined a spectrum of interactions between faculty and students,from the most casual to the most intense. At some point in their law school

careers, most students have occasion to approach faculty members outsideclass. Faculty members may choose to advocate for a small number of students

through letters of recommendation, phone calls, and other assistance in finding

jobs, particularly clerkships and academic posts. Other students work closely

with professors through research and teaching assistance or through writing

projects. In any of these contexts, some students form mentoring relationshipswith faculty that may include professional guidance, role-modeling,

encouragement, and friendship.Empirical data gathered from both faculty interviews and student responses

demonstrate that women find it more difficult than men to approach facultymembers outside of class. Student perceptions on this issue vary by gender:

63% of women, but only 28% of men, observed differences in the way men andwomen interact with faculty outside the classroom. Several female studentssuggested that male students feel "entitled" to professors' time outside the

classroom. A female 2L said that not only do men appear more comfortabletalking to professors, but that, "more discouragingly, professors seem muchmore comfortable talking to male students." Differences in out-of-class

interactions are expressed in (1) men's greater levels of comfort in approaching

faculty members outside class and (2) men's and women's different ways ofresponding to pressures to "perform" in their interactions with facultymembers.

1. Women Are Less Comfortable Approaching Faculty Members

Students were asked to gauge their discomfort level on a scale of 1 to 5("1" signifying "very comfortable" and "5" signifying "very uncomfortable")in approaching faculty members in six different ways outside the classroom: (1)

attending posted office hours; (2) scheduling an appointment outside posted

office hours; (3) stopping by a professor's office without an appointment; (4)

approaching a professor after class or during breaks; (5) telephoning aprofessor; and (6) e-mailing a professor. Male students reported a higher level

of comfort with each of the six methods, 105 as the chart below shows:

105. Although students were not asked to report which methods they actually use, their narrativeresponses suggest they most often used the approaches with which they felt most comfortable. We askedfaculty members to monitor and report the numbers of male and female students who visited theiroffices, but the reporting was sporadic.

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Men Report Greater Comfort M Men's Comfort

Approaching Professors U Wornen's Comfol

70-

60-

50-

40--til20--

10--

0- -

During Office By Appointment Without After/During By Phone By E-MailHours Appointment Class

Men are also much more likely than women to feel "very comfortable"approaching faculty members, while women are more likely to feel "veryuncomfortable" doing so. 10 6

Minority students expressed greater discomfort than white students withvisiting faculty members in their offices. 10 7 An African-American femalestudent said race is a barrier: "In person, I think some professors are hyper-sensitive to minority students ... and have felt often that they were stiff withme as a minority ... ." An African-American male explained that, "professorsseem pretty busy, and I hate to interrupt."

Free response answers of (white) male students suggested that they feelentitled to a professor's time during office hours. A male student commentedthat "during designated class or office hour times, I feel as though the professoris essentially on my time." Female students, however, rarely expressed apreference for face-to-face contact during office hours and found it more

106. Of the students who felt comfortable using posted office hours, 18% of men and 10% ofwomen reported being "very comfortable" doing so. Of the students who felt comfortable approaching aprofessor to schedule an appointment, 15% of men and 18% of women reported being "verycomfortable." Of the students who felt comfortable approaching faculty after class or during classbreaks, 34% of men and 9% of women reported being "very comfortable" doing so. Conversely, of thestudents who are uncomfortable visiting a faculty member without an appointment, 40% of women are"very uncomfortable," compared with 25% of men, and of the students who are uncomfortabletelephoning a professor, 63% of women and 43% of men are very uncomfortable doing so.

107. None of the twenty-five African-American or Latina women reported being "verycomfortable" attending posted office hours; none of the forty African-American or Latino respondents,male or female, reported being "very comfortable" approaching professors to schedule an appointment;and none of the seven Latina respondents reported being more comfortable than uncomfortable doing so.Fewer than ten percent of Latino and African-American students reported feeling comfortable stoppingby without an appointment.

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challenging to maintain an easy flow of conversation when visiting with aprofessor in person. "[I] think they expect a level of academic rigor in thequestion that to me prohibits an easy and cooperative discussion of ideas. Ialmost think the only questions that quite a few professors would find worthhearing would be ones I already had thought out the correct answer to,"observed a female IL. Female students said they feel pressured to have aspecific question in mind and to prepare in advance for meetings with facultymembers.

The starkest difference in perception is evident in how women and menview approaching professors after class and during class breaks. In theirnarrative answers, men described these interactions as low-key and convenient,while women describe them as competitive and even combative. These findingsare consistent with faculty and student observations that men are more likely to"rush the podium" after class and during breaks. Male students described thesetime periods as efficient, convenient, and "informal" opportunities to engageprofessors, characterizing them as "minimally intrusive." Female students, onthe other hand, said that they were not comfortable having to "beat severalother classmates to the front" and would avoid doing so, even if they had aquestion or wanted to discuss something. More than one woman expressedadditional discomfort with getting to the front of the crowd and "then [being]subject to everyone else listening to my reaction/questions/thoughts." Somemale students shared this reaction; two men expressed similar distaste in theirfree response answers, and 19% of men reported being uncomfortableapproaching professors after class or during breaks.

2. Faculty Observe Differences in Styles of Approach

Observations by faculty members support the finding that men and womenapproach them in different ways. Some faculty members reported that (at leastslightly) more men than women approach them outside class. Faculty membersconfirmed that male students are more likely than female students to approachthem right as class ends, generally in order to follow up on a question orcomment from the class discussion. In addition, some faculty members reporteddifferences between men's and women's styles of approach. A male professorsuggested that male students are more "autobiographical" and "will just sitdown and start talking about their lives, themselves." A female professor notedthat more male students will come "just to talk" whereas women are morelikely to stop by with specific, substantive questions. One male professorreported that women appear to need a firm reason to request his time.

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B. On Finding Advocates and Mentors

Perhaps unsurprisingly, given their diminished overall engagement withfaculty members, women tend to forge more attenuated mentoringrelationships. Women experience greater discomfort in asking for letters ofrecommendation, and anecdotal evidence suggests they are less likely to do so.They also are less likely than men to have a faculty mentor, and they are lesssatisfied with mentoring opportunities. Women are more likely than men toreport a mismatch between their expectations of mentoring and those of facultymembers, particularly regarding how performance-driven the relationshipshould be or how holistic the guidance provided should be.

1. Women May Be More Hesitant to Request Letters of Recommendation

Reponses provided by faculty interviewees suggest that women are lesslikely to request letters of recommendation, particularly for highly competitivepositions. Of the faculty members who noticed a disparity between the numbersof men and women requesting letters of recommendation,10 8 eleven professors,including two female professors, reported writing more letters for men, whilefive faculty members, including three female professors, reported writing moreletters for women. Many faculty respondents observed that even men whomthey do not know very well appear comfortable asking for recommendations,while highly successful female students hesitate. One female professor notedthat, in particular, more men seem to be willing to ask for letters without havingformed a personal relationship with her, while women seem less comfortableasking for letters in similar circumstances. A female professor made a similarobservation about collaborative projects, reporting that women tend to workwith her as research assistants and then ask her to work with them on their ownprojects, while men more often appear and say "I want to write about X, willyou supervise me?" She said that men tend to display a greater sense ofentitlement and confidence in their own capacities. Male and female facultymembers reported a gender gap in students who request letters ofrecommendation for "top" clerkship positions, despite the fact that in recentyears, men and women have obtained these positions in almost proportionalnumbers. 109 One possible explanation is that women self-sort-fewer apply, butthose who do enjoy higher success rates." 10

108. Five faculty members report writing similar numbers of letters for men and women.109. See Appendix D.110. The 1995-1996 Dean's Ad Hoc Committee on the Status of Women at Yale Law School found

that women applied for clerkships in disproportionately low numbers, but that they enjoyed highersuccess rates than their male counterparts, presumably because they self-selected to a greater degree.DEAN'S AD Hoc COMM. ON THE STATUS OF WOMEN AT YALE LAW SCH., YALE LAW SCH., REPORT1996.

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A small number of women reported that they did not seek certainopportunities because they were unsure that they could secure arecommendation letter. A minority female noted, "I didn't apply for clerkshipsbecause I only believed that I knew one professor . . . regardless of an H[honors grade] in the class ... I didn't feel comfortable asking professors whohardly knew me." According to another female 3L:

Once I began applying for teaching jobs, I felt like it would be aburden for them to write a recommendation for me. Even in classeswhere I participated, got to know the professor well, and got an[honors grade], it felt like it would be too much to ask of them, or theywould not have anything substantial to say.

2. Women Are Less Likely to Have a Mentor

While the number of students reporting that they have "a particularly close,mentor-like relationship" with a faculty member increases with seniority ofclass year, women in each year are less likely than men to have a facultymentor.111 Some groups of nonwhite students were less likely than their whitecounterparts to have a faculty mentor. 112 Of the students who said they have afaculty mentor, 64% said that their mentor is a male faculty member. Morewomen (40%) than men (32%) reported that their mentor is a female facultymember. Because women compose 20% of the faculty, these data suggest thatfemale faculty members take on a disproportionate share of studentmentoring. 113 Most students, including many students who said they have afaculty mentor, reported dissatisfaction with mentoring opportunities at YaleLaw School, although women are more likely than men to reportdissatisfaction.

114

Male and female students reported that they form mentoring relationshipsin generally similar ways-they become close to faculty members by serving asa research or teaching assistant, by writing a paper with the faculty member, orby maintaining a relationship formed from their first year "small group"experience in which faculty members teach a seminar of sixteen students.Nearly twice as many women as men found mentors by working for a professor

111. Among 3Ls, 51% of male students and 45% of female students reported that they had a facultymentor, compared to 45% of male 2Ls and 38% of female 2Ls. Among 1Ls, 25% of men and 18% ofwomen reported having a mentoring relationship with a faculty member.

112. Among non-white males in the second year class, 30% report that they have a mentor, while50% of their white male counterparts report the same. Only 11% of minority females in the first-yearclass report that they have a faculty mentor, while first-year white females report double that number(22%). In other groups sharing the same gender and class year, minority students and white studentsreport few differences.

113. Some of the difference, however, likely reflects the fact that women were over-representedamong clinical faculty-29% of all students report that their faculty mentor is a clinical professor.

114. Dissatisfaction among female students was 77%, while 64% of male students reporteddissatisfaction.

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as a research assistant, while nearly twice as many men as women foundmentors through their own writing projects. This finding is consistent withcomments by women that they feel they must "earn" a mentoring relationshipand with observations by some professors that men tend to display a sense ofentitlement for faculty input in their own projects.1 15

Perhaps the most surprising difference is the extent to which male studentsrely on casual contacts as the basis for forming a mentoring relationship.Twice as many men as women listed class participation as the basis on whichthey found a faculty mentor. 116 Men were more likely to use robust, in-classengagement with faculty members to develop out-of-class relationships.' 17

3. Women Are Underrepresented in Areas Where Faculty MentoringMatters

The dynamics described above, in which female students experience moreattenuated relationships with faculty members, have consequences for women'sprofessional and intellectual development. Students at Yale Law Schoolgraduate to enjoy substantial professional opportunities. 118 However, women'srelative underperformance appears starkly in the fields in which facultyadvising, role-modeling, and mentoring are most important: publishing andacademia.

Membership on The Yale Law Journal and publishing work while in lawschool are important credentials for students wishing to enter the academic jobmarket. 119 Disparities in men's and women's membership on The Yale LawJournal board and in publication of student notes are predictive of disparities inmen's and women's entrance into the academic job market.

Over the past decade, women have served as editors or board members ofThe Yale Law Journal in somewhat disproportionately low numbers, despitetheir equal representation in the journal's top position, editor-in-chief. 120 Atleast some of the disproportionately low representation stems from the fact that

115. Some studies claim that women undervalue their efforts compared to men and display less of asense of entitlement to being rewarded for their work. See, e.g., Denise D. Bielby & William T. Bielby,She Works Hard for the Money: Household Responsibilities and the Allocation of Work Effort, 93 AM. J.Soc. 1031, 1034 (1988).

116. Another interpretation is that for men, class participation is not just a casual basis of contactwith faculty members-it is an opportunity for substantial communication.

117. See Appendix B for a table summarizing how men and women form mentoring relationships.118. See. e.g., infra note 134.119. Of course, students interested in academia may also choose to edit and publish in subject-

specific legal journals, but working on The Yale Law Journal remains a traditional and importantcredential for students interested in academia.

120. In five of the last ten years, women have held the journal's most senior post. In contrast, forvolumes 106-112 (1996-2003)--of which four volumes were headed by a female editor-in-chief-women represented 29% of The Yale Law Journal's officers (including the editor-in-chief, managingeditor, and executive editor positions) and 39% of board members overall. They represented 42% of"junior" editors, generally second-year students, for that time period.

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women are applying for Journal and board membership in lower numbers. 121 In1995, The Yale Law Journal undertook a large-scale initiative to recruit womenand students of color. 122 The initiative appears to have borne fruit in theacademic year 1996-1997, immediately following the study, but women'sproportional participation declined in subsequent years. 123

The disparity between men's and women's publication in The Yale LawJournal is more striking. Between 1996 and 2003, women produced only 36%of student-published work, even though, on average, they comprised 45% ofthe 3L J.D. class in those years. 124 Because the Journal promptly destroysidentifying information about unsuccessful student submissions, informationabout acceptance rates for student publications was not available. However,board members did collect such data for the academic year 1994-1995, as partof their study of women's representation on The Yale Law Journal. 125 Thatinquiry shows that women submitted notes at a slightly low rate (39% ofsubmissions were female-authored, compared to women's representation as42% of the 2L and 3L classes 126), but women experienced a dramatically lowacceptance rate-8%, compared with 35% for men. 127 The low acceptance rateappears to be in large part due to the fact that women did not re-submit afterexperiencing initial rejection. Sixty-three percent of the notes eventuallypublished were rejected the first time and accepted only after resubmission. 128

Thirty-seven percent of initially-rejected male-authored notes were re-submitted, in contrast to 12% of initially-rejected female-authored notes. 129 In

121. Journal membership is determined by the results of a "Bluebooking" test in which studentsmust correct citations and an editing test in which students assess the merits of sample articlesubmission. The test is generally considered to be a straightforward application of the principles of legalcitation-in other words, for the years studied, journal membership was considered within the capacityof most students who wanted it badly enough to study the Bluebook hard enough. In the academic year1995-1996, as part of an initiative to recruit more women and students of color, The Yale Law Journalrecorded acceptance rates by gender for the Spring 1994 competition. Only thirty-three women,compared to seventy-five men, completed the application process, but women had a higher acceptancerate: 48.5% compared to 34.7%. Memorandum from Tricia Small to Jonathan Cedarbaum (Dec. 7, 1995)(on file with the authors).

122. In the years preceding the initiative, the Journal came under fire for being elitist andunrepresentative. Journal editors undertook an extensive year-long study, including consultation withminority student groups and alumni, and they changed the selection process to try to diversifymembership. Background and a description of the initiative are on file with The Yale Law Journal.

123. In 1996-1997, women were slightly overrepresented, comprising 48% of editors but only 46%of the 2L J.D. class. The following year, their representation dropped to 31%, compared with theirrepresentation as 39% of 2L J.D. students.

124. Students submit notes anonymously, and a special committee of board members, includingone executive editor and the editor-in-chief, considers them for publication. See Appendix C for a tableshowing student note publication by gender.

125. Memorandum from Elena to Jonathan (Dec. 18, 1995) (on file with the authors).126. Id.; YALE LAW SCH., YALE LAW SCHOOL DIRECTORY 1994-1995 (1994).127. Forty male-authored notes and twenty-six female-authored notes were submitted, while

fourteen male-authored notes and only two female-authored notes were accepted. Memorandum fromElena to Jonathan, supra note 125.

128. Id. Notes editors include substantive feedback and suggestions for revision in their lettersrejecting student-authored submissions.

129. Id.


other words, most published notes were published only after multiplesubmissions, but few women re-submitted after initial rejection. Thisphenomenon is impressionistic, because it covers only one year of notessubmissions, but it is consistent with comments by faculty members that theybelieve women exhibit less "tenacity" in pursuing academia-related goals. 130

Student publications generally begin as papers written under thesupervision of faculty members, who encourage aspiring legal academics topublish student notes. To some extent, women's disproportionately low studentnote publication rate predicts their underrepresentation as legal academics,another area in which faculty advocacy is important and a matter of particularpride for Yale Law School. By one calculation, YLS is the second highestoverall "producer" of law teachers, 131 second only to Harvard Law School,whose student body nearly triples that of Yale. In the academic year 2002-2003, 10.1% of U.S. law school teachers were YLS graduates, even thoughYLS graduates account for fewer than 1% of U.S. law school graduates. 132

However, the number of female YLS graduates entering legal academiaremains low, even as women's enrollment in law school continues to grow. Ofthe YLS graduates who went on the legal academic job market between 1996and 2002, only 29% were women. 133

The comparison of male and female performance in academic jobs isinteresting for two reasons. First, academia is a highly competitive career pathin which Yale Law School graduates are differentiated. 134 Academic jobs areconsidered desirable by students, and they are difficult to obtain. Second,academia is a career path in which relationships with faculty members areparticularly important for law students. Professors serve directly as mentors,role models, recommenders, and writing coaches for students wishing to enterthe job market. More than other performance measures, the relatively lowernumbers of female students entering academia reflect their more attenuatedrelationships with faculty members. 135

130. See infra Part IV.C for a discussion of this issue.131. Neumann, supra note 2, at 319.132. The 2002-2003 American Association of Law Schools Directory of Law Teachers lists 852

Yale Law School graduates out of a total of 8404 law teachers. ASS'N OF AM. LAW SCH., THEAMERICAN ASSOCIATION OF LAW SCHOOLS DIRECTORY OF LAW TEACHERS, 2002-2003 (2002). Thisdata was provided by Marilyn Drees and Barbara Safriet, Yale Law School, and is on file with theauthors. In addition, Yale Law School graduates produce some of the most commonly-cited scholarship.Fred Shapiro, The Most-Cited Law Review Articles Revisited, 71 CHI.-KENT L. REv. 751, 765 (1996)(noting that Harvard, Chicago, and Yale train over 70% of the authors of the most-cited legal articlesand that on a per-capita basis, Yale "would probably rank first").

133. See Appendix C for tables describing Yale Law School graduates who enter academia.134. In contrast, in part because of the small size of Yale Law School classes and relatively large

recruiting needs of selective law firms, first-year associate positions at selective firms are considered tobe within reach of most Yale Law School graduates.

135. Judicial clerkships are also positions for which faculty advocacy is important, and they will bediscussed separately in Part IV.C.

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Of course, most law students do not seek to become legal academics, but itis an area in which informal networking, as opposed to formal benchmarkssuch as grades, is key. The importance of these networks only increases asstudents graduate and enter workplace settings.

C. Lack of Transparency Exacerbates Harm Caused by Distance

The lack of transparency about student performance and opportunities

within law school and the legal profession means that students who cannotaccess faculty members are disadvantaged in obtaining information aboutthemselves and the opportunities they seek. Faculty members communicate the"rules" for succeeding in law school through informal interactions with the

students who have developed relationships with them. As we have shown,those students are more likely to be male than female. Opacity about what isneeded to succeed, particularly in academia-the importance of grades,whether one must publish while in law school, when and how to enter the jobmarket-disadvantages those who are likely to be excluded from informalnetworks. 36 The lack of clarity ranges from how to find a professor outside ofclass-fifteen of the thirty-four faculty respondents who addressed the issuesay they do not post regular office hours-to how to become a researchassistant, in light of the fact that most positions are not advertised. Femalestudents expressed frustration at their exclusion from these networks.According to a female IL:

YLS operates by a set of unarticulated rules about how to find a paperadvisor, how to get a prime R.A. [research assistant] job, how to obtaina clerkship recommendation, etc. For whatever reason, men tend tolearn these rules differently than do women, perhaps becauseprofessors transmit them to very verbal male students.

A female faculty member offered a more measured perspective on YaleLaw School's "lack of rules": "[H]istorically, women have differentially paid apenalty (though not all women, and lots of men) due to the anarchicatmosphere. Male or female, students who miss out on the hallwaycommunication of norms and expectations are disadvantaged.. . ." Femalestudents expressed uncertainty over when and how it is appropriate to approacha professor, particularly those who do not hold regular office hours orotherwise make clear how to reach them. A male IL said that "the old-schoolidea of law being a boys' club" still has a powerful effect on faculty-studentrelationships.

The lack of transparency extends beyond informal interactions. Becausestudents receive little feedback on their academic work, students areparticularly dependent on faculty responses to gauge their performance. Both

136. CATALYST, supra note 8.

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male and female students expressed strong dissatisfaction with the amount offeedback they received from faculty members on their written exams andpapers, which are notoriously graded late and given little, if any, feedback.137 Aregime of no feedback may particularly disadvantage women, who arenewcomers to a male-dominated profession.1 38 Faculty respondentsoverwhelmingly reported that female students are less likely to be aware oftheir strengths, and that, in particular, stellar female students are less likely thantheir male counterparts to request letters of recommendation for highlycompetitive circuit court clerkships and Supreme Court clerkships. One maleprofessor attributed the fact that many top-performing women hesitate to applyfor top clerkships to lack of information about their own (strong) qualifications:"In a school with grades, it's easier to know if you're at the top of your class;it's easier to have that confidence." In a study of alumni who graduated overthe last three decades, female graduates of Yale Law School perceivedthemselves to be ranked lower in their classes than male graduates of Yale,although no actual class placement is computed. 139 If women are less likely todevelop mentoring relationships with faculty members, those who excel mayhave fewer avenues to obtain feedback about their performance andqualifications. 1

40

We acknowledge the importance of informal networks, and do not suggesttrying to eradicate them in law school. It is natural that information istransmitted through relationships that develop, and those networks arereplicated in the workplace. 141 Law schools, however, can implement structuralchanges that will transform and diversify these networks. At the same time,however, they should make relevant information available to everyone.

137. YALE LAW WOMEN, supra note 44, at 73.138. Nancy E. Betz, Implications of the Null Environment Hypothesis for Women's Career

Development and for Counseling Psychology, 17 COUNSELING PSYCHOLOGIST 136, 137 (1989);Krauskopf, supra note 14, at 317.

139. We do, however, know that the perceptions do not reflect reality, if only because of thenumerical impossibility. One hundred twenty men and 192 women responded to the question, "To thebest of your recollection, your law school grades would have given you a class rank in which segment ofyour class?" Twenty-two percent of men, compared with 10% of women, self-reported being in the toptenth of the class; 25% of men, compared to 11% of women, reported being in the second tenth of theclass; and 15% of men, compared to 24% of women, reported being in the third tenth of the class. Nomen, and 2% of women, reported being in the bottom half of their classes. Presumably these "rankings"would refer to the number of "Honors" grades received. These Yale-specific responses were compiled as

part of CATALYST, supra note 8, and are on file with the authors.140. The issue is not necessarily whether a law school uses a formal or informal grading system.

Conscientious feedback requires faculty members to engage with students' work and ideas, irrespective

of the grading regime.141. CATALYST, supra note 8.

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D. Explaining Different Experiences of Women and Men Outside the

Classroom

We have described differences in the ways male and female studentsinteract with faculty, and we have shown a link between those differences andwomen's diminished participation in legal writing and academia. We suggest

three reasons for these differences. First, faculty treat women differently frommen in ways that create distance. Second, many members of Yale LawSchool's predominately male faculty employ what we call a "self-replication"model of mentoring that favors male students. Third, law schools recognize andreward a particular kind of demanding behavior that may be more commonlydisplayed by men than by women.

1. Some Faculty Members Send Different Signals to Female and MaleStudents

First, men and women experience law school differently, in part, becausefaculty members treat male students differently from female students. Aconsistent and recurrent theme emerges from the classroom participation data,the quantitative responses to the student survey, and the personal narratives offaculty and student respondents. In an attempt to avoid offending femalestudents and to avoid the appearance of sexual impropriety, male facultymembers interact less often and less closely with female students in ways thatinhibit the growth of professionally valuable relationships and even distancewomen from the material that faculty members teach.

Just as professors are hesitant to challenge women in class, so, too, outsidethe classroom, deference leads to distance. Faculty members expressedconcerns about the appearance of impropriety in interacting with students of theopposite sex 142--concerns that they recognize make it more difficult for femalestudents to form close relationships with a predominately male faculty. A maleprofessor gave an example of his interactions with two students, one male andone female, with whom he separately co-authored articles. While he knew factsabout the male student's personal life early on in their working relationship, henever asked the female student about her personal life, and she did notvolunteer information. Describing the relationship as being at "arm's length,"the professor expressed concern that he is so "careful not to sexualize teacher-student relationships, because so much damage has been done and continues tobe done by sexualizing those relationships" that he forms closer relationships

142. Of course, the dynamic changes depending on the gender and sexual orientation of the facultymember and student. We note, however, that, because the faculty is predominately male andpredominately heterosexual, discomfort arising from sexual tension or concerns over sexual improprietywill disproportionately affect female students in their interactions with professors.

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with male students. He also noted that he feels comfortable joking with men butworries that such behavior would offend women.

Another male professor said that, in interactions between female studentsand straight male professors, "I feel that there is often 'fear on both sides'--ofharassment on the part of the student, and of an accusation of harassment on thepart of the professor." Respondents were not asked directly whether they hadexperienced sexual harassment, although a few female students said that theywere concerned about it. 14 3 A male professor reported being less comfortablehaving any physical contact with female students because he did not want "agesture to be misconstrued or to make a student uncomfortable in any way."

Some female professors also reported being careful about their interactionswith members of the opposite sex. One female professor said, however, thatthose concerns are heightened among her male colleagues:

I very rarely forget that a male student is a male. It is the same formale professors. They will never truly relax around a female studentbecause they will never forget the gender of that student. It's worsewith a male professor and a female student in that the sexual dynamicsare more tense/sensitive with an older male professor and femalestudent than with an older female professor and a male student.

Whether they themselves fear sexual impropriety, or whether they areresponding to the discomfort of faculty members, male and female studentsreported that concerns about impropriety hinder the development of closerelationships between male professors and female students. A male 2Lobserved that "female students seem less comfortable in one-on-one situationswith male professors." Two male student respondents expressed the opinionthat male faculty members form sexual relationships with female students. Wefound no corroboration of these observations from female students or facultymembers, but some female students explained that, like faculty members, theyworry about the appearance of impropriety. A female 2L indicated, "I'veknown more male students who can strike up 'buddy' relationships withprofessors-obviously this is due to the fact there are more male professors...as a woman, I would fear being perceived as improper/flirtatious if I were tospeak to faculty members that way." Another female 2L said that male studentshave an easier time getting close to male professors in part because professors"seem a bit uncomfortable with female students outside of class."

This dynamic suggests that female students' increased discomfort inapproaching faculty members and diminished ability to form mentoringrelationships are, in part, a response to discomfort and distance that stems fromfaculty members. On this reading, the problem is not that women are more

143. Approximately 4% of respondents, all of whom were female, report that in their contact withYale Law School professors they are or have been concemed with sexual harassment. Some maleprofessors report that they keep their doors open when female students are in their offices to alleviatetheir concerns about the appearance of impropriety. This is an area that merits further study.

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hesitant than men to approach-the problem is that faculty members aresending different signals to men and women. Male faculty members' concernsover sexual harassment may be genuine, 144 but, in our opinion, the appropriateresponse is to maintain appropriate behavior with all students-not to avoidengaging women.

2. A Self-Replication Approach to Mentoring Disadvantages FemaleStudents

Second, an approach to mentoring based on self-replication by apredominately (white) male faculty exacerbates the different treatment,particularly in informal interactions. At least some faculty membersacknowledged experiencing difficulty in mentoring members of the oppositesex, and others observed that same-sex mentoring relationships appear to be

easier and more natural. A male professor suggested that men are drawn towork with him because they see themselves in him, while another believed thatone of the reasons he may write fewer clerkship letters for women than for menis that female students feel more comfortable asking female faculty membersfor recommendations. According to a third male faculty member, "there is apervasive sense among [female students] that [male students] are the ones to

connect to faculty." During one interview, a male faculty member confidentlystated that he supervises equal numbers of male and female students. Uponbeing pressed by the interviewer, however, he realized that nine of the tenformer students with whom he maintained close relationships were male-andthat he had lost touch with the tenth, a woman. He admitted to being "struck"

by the discrepancy.Students, in turn, attributed at least some of the awkwardness to faculty

members. A male 3L said that "male professors are able to interact with certainmale students in a more natural way because they see themselves in these

students." A male IL noted that this may result in "some male students try[ing]to connect to the professors in personal way[s] more beyond academics."Female students shared the belief that male professors find it easier to interactwith their male peers because of perceived common interests. The reason malestudents are more "comfortable, confident" with professors, according to afemale IL, is that "male professors may be more likely to see themselves inmale students and thus more likely to make greater effort in mentoring them.

Or they may simply feel more comfortable communicating with males ingeneral."

Male faculty members may also be less confident in their ability to mentorwomen, in part because of a perception that women have different goals for

144. No faculty member reports having been accused of sexual harassment, although they were notnecessarily asked that question directly.

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mentoring relationships than men. A male professor worried that "I might be

missing something [when I mentor women]. I'm not sure I can really put

myself in their shoes ... I'm more confident that I pick up on similar signals bymen." Another male professor reported that because women often seem more

respectful, deferential, or diffident than men, it "changes the way I relate to

them. I am perhaps more comfortable just chatting with men-not as concerned

when asking them personal questions that I may be intruding." A female

faculty member said, "Just using gender doesn't accurately capture the ways in

which students and faculty interact with one another-race is very salient in the

equation."145

Affinities between similar people may be natural, but they disadvantagewomen in a system where most of the potential mentors are male. Self-

replication is not the only paradigm for mentoring, but its prevalence makes a

diverse faculty an important source of mentoring for a diverse student body.Although professors were not directly questioned about their views on faculty

diversity, the issue arose in some interviews: Three female professors and fivemale professors recommended increasing the number of women and/or

minority faculty members as a means of providing greater mentoring

opportunities to women and students of color.While we advocate diversifying law school faculties, 146 we also argue that

self-replication is an inadequate way to conceptualize mentoring. Students seekall kinds of advice and guidance and could benefit from faculty perspectives.Mentoring should be about making the effort to find common areas of

engagement rather than falling back into easy, comfortable forms of interactionthat perpetuate homogeneity. Law schools should promote a mentoring

paradigm suitable for a heterogeneous pool of new lawyers. Conceptualizingmentoring more broadly will benefit all students and, in particular, will helpfemale students receive the information, guidance, and encouragement they

seek from professors.

3. Institutional Values Reflect a Male Bias

Third, women are more likely to exhibit certain characteristics that areundervalued in law school. Law schools reward behaviors more commonly

displayed by men and do not reward other behaviors more commonly displayedby women, even though both kinds of behaviors are helpful in the practice of

law. We argue that a diversity of positive behaviors should be rewarded when

displayed by any student, male or female. Our motivation may be to improve

145. The Racial Dynamics survey found that minority students were less likely to have a mentorand more likely to be dissatisfied with mentoring opportunities. COMM. ON RACIAL DYNAMICS, YALELAW SCH., supra note 54, at 25-29.

146. See infra Part V.C.

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education for female students, but our method will improve law school for allstudents.

As institutions, law schools operate incentive systems that work to thedisadvantage of students who regulate the demands they make of time andspace. For example, faculty members respond to students who speakdisproportionately often in class, "rush the podium" after class, and makerepeated demands on professorial time. Certainly, persistence and assertivenessare useful tools for lawyers, and there is some merit in rewarding them.However, the self-regulation commonly displayed by women reflects otherbehaviors desirable for lawyers. Many women reported undergoing ratherextensive preparation before approaching faculty members due to their beliefthat they must have specific, prepared, and intelligent questions in mind. Thisseems like an institutional value to encourage-students maximizing theefficiency of those interactions by preparing in advance. Yet the institution, inthe form of its faculty, does not reward this behavior, which is more commonlydisplayed by women.147 It is interesting to note that while many facultymembers expressed frustration with class discussions dominated by a smallnumber of students-and with the aggressive demands that (primarily male)students make on their time-they nevertheless reward those students with theirtime and attention.

In the next Part, we suggest concrete measures-such as allocating facultytime in more transparent and deliberate ways-that law schools can use toreassess the values they express and to implement changes that will improvethe way they educate men and women. These reforms are timely in light of theincreasing importance of collaboration, negotiation, problem-solving, andmanagement to the work of lawyers. If law schools are going to producelawyers with the skills necessary to succeed in the profession as it exists today,they must reassess their pedagogical approach and the signals they send tostudents about the value of certain skills.

147. Perhaps female students experience pressure to overcome the distance they feel from facultymembers as a result of their diminished class participation, signals from faculty members, and/or thelack of transparency about how to achieve the objectives they have for law school and their legalcareers. Perhaps their perceived need to prepare is a reaction to the vertical sex-segregation of thefaculty, as Kanter has addressed in her work on the effects of a hierarchy in which men dominate the toprungs. See generally KANTER, supra note 91.

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V. TRANSFORMING INSTITUTIONAL VALUES

The law itself is an adversary system that is inherently gendered. The firmsare gendered; the institution is gendered; law practice is gendered.

- male professor

If there is any truth to the above statement, then law school, as the locus ofan individual's initial and intense socialization into law, is the pressure pointfor changing the profession. Law schools have a responsibility to realize theirfunction as key institutions for moving the legal profession beyond numericalparity, toward vertical and horizontal integration. The process of doing so willalign the training that female and male students receive with the demands of achanging profession. It will also remove substantial obstacles to women'sadvancement in law. No less is required of a profession whose central tenetsinclude fairness and equality of access.

Lawyers understand that, in any proceeding, rules and structures determinethe fairness and legitimacy of the outcome. This Article has demonstrated howthe current rules of engagement in law school favor a subset of students-malelaw students. 48 Law teachers would do well to consider how their views ofprocedural fairness apply to their most immediate spheres of influence-theirclassrooms. Pedagogy is a process, and like a legal proceeding, its rules shouldminimize irrelevant constraints on the ability of participants to succeed.

This Part urges law schools to invest in pedagogy, bringing what they teachstudents into conformity with what students need to be good lawyers. Bychanging their pedagogical practices to respond to changes in the practice oflaw, law schools will remove early obstacles to female students becomingleaders in the profession. By rewarding depth and thoughtful reflection, inaddition to quickness, law school professors will promote the development ofmore of the skills that lawyers utilize. By promoting greater transparency in theinformal transmission of information and guidance that takes place outside ofthe classroom, law schools will expand opportunities for students who arecurrently excluded from professionally beneficial relationships with facultymembers. Finally, by hiring more female faculty members, law schools willhelp dismantle a system that reflects a bias in favor of men in ways that aredemonstrated, 149 if not fully understood.

148. To the extent we were able to record data on this issue, we noted that among male lawstudents, non-white students faced many of the obstacles that female law students faced, particularly ininteracting with faculty members outside of class. See supra Part IV.

149. See supra Part II (showing that female students speak more frequently in classes taught byfemale professors); supra Part IV (showing that female professors take on a disproportionate share ofmentoring responsibilities).

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A. Invest in Pedagogy

What happens in the classroom-how professors and students interact

during class discussions-affects almost every other interaction betweenfaculty and students and shapes the way students engage the law. The first stepin improving the preparation law schools offer to students is to reclaim theimportance of reflective pedagogy.

Legal education as it is currently constituted does not respond adequatelyto sea changes in the way lawyers practice their craft. 150 Law's adversarialsystem has evolved into an interdisciplinary field in which settlement,mediation, and negotiation are at least as important as trial preparation andpractice. 151 The skills and behaviors necessary to succeed in this new legal

regime include many skills and behaviors that are not rewarded in lawschool. 152 Instead, law schools reward conduct that, at best, reflects only anarrow subset of the skills needed for good lawyering-such as dominating

discussions at the expense of hearing other perspectives. 153 In doing so, theyneglect to reward other skills students need to learn. Current research about

men and women in law school describes legal skills along a continuum, notingthat many, but not all, women tend to disproportionately exhibit certain skillsets. Unsurprisingly, given the genesis and history of the legal profession, law

schools neglect cognitive skills traditionally associated with women, including

150. See, e.g., THE MACCRATE REPORT: BUILDING THE EDUCATIONAL CONTINUUM, supra note97; Susan Bryant, The Five Habits: Building Cross-Cultural Competence in Lawyers, 8 CLINICAL L.

REv. 33 (2001); Peggy Cooper Davis & Elizabeth Ehrenfest Steinglass, A Dialogue About SocraticTeaching, 23 N.Y.U. REv. L. & SOC. CHANGE 249 (1997); Harry T. Edwards, The Growing DisjunctionBetween Legal Education and the Legal Profession, 91 MICH. L. REV. 34 (1992).

151. Adversarial verbal arguments have come to represent just a small fraction of lawyerly work.See, e.g., Judith Resnik, Changing Practices, Changing Rules: Judicial and Congressional Rulemakingon Civil Juries, Civil Justice, and Civil Judging, 49 ALA. L. REv. 133, 181 n. 177 (1997) (stating thatfewer than four percent of cases on the civil docket conclude in the commencement of a trial, and manyadjudicated motions are decided without oral arguments).

152. DEBORAH L. RHODE, IN THE INTERESTS OF JUSTICE: REFORMING THE LEGAL PROFESSION196-99 (2000) (law schools neglect key pedagogical areas including interviewing, counseling,

negotiating, drafting, and problem solving, and law schools inadequately address the psychologicalaspects of lawyering and the social, political, and historical context of formal doctrines); Harry T.Edwards, A New Vision for the Legal Profession, 72 N.Y.U. L. REV. 567, 567-68 (1997) (arguing that

law schools, particularly highly selective law schools, "emphasiz[e] abstract theory at the expense ofpractical scholarship"). Peggy Cooper Davis and Carol Gilligan seek to prepare students for the fullrange of lawyerly activities in their Workways program at New York University. The Workwayswebsite describes the program, observing that "the range of intellectual capacities and activitiesgenerally valued and developed in law schools is narrower than the range needed to do the work oflawyers." Workways Forum, http://www.law.nyu.edu/workways/index.html (last visited Oct. 10, 2006).

153. Certainly, there will be situations in which trial lawyers will want to dominate a courtroom, inorder to push their arguments upon a judge or jury. However, lawyers need to know when to argueloudly and when to listen carefully, when to respond to counter-views and when to ignore them. Giving

air time to the same few students who dominate class discussions gives students a distorted view of whatit means to argue effectively. It also restricts the diversity of views and perspectives offered. Arguing incourt is a very small part of the work done by lawyers, see supra note 151, and not all trial lawyers"dominate" in order to argue effectively.


contextual reasoning, relational skills, and narrative intelligence.1 54 In failing tovalue or teach so many of the skills that lawyers actually need, law schools do adisservice to all students, but particularly to female students, whose strengthsare more likely to be overlooked.

The test for what skills to emphasize is pragmatic. For example,questioning students in class discussion should be as combative as necessary toprepare students both for litigating and arguing, and for negotiating andsettling. Because teamwork and regard for others have become so important tothe successful practice of law, 5 5 classrooms should be run in ways thatencourage students to engage each others' ideas and to allocate time among adiversity of speakers. One male faculty member speculated that women'sdisproportionately high participation in legal clinics stems from their attractionto its collaborative, non-hierarchical structure-a structure that mimics theconstructive ways that lawyers work together on projects and cases. Yet clinicalwork is undervalued at Yale' 56 and at many other law schools, 157 and non-clinical classes are often run in ways that disparage contextual reasoning andengagement of alternatives.1

58

A wealth of research inside and outside the legal academy providestheoretical and practical ideas for creating an open, inclusive, and effectiveclassroom environment. 159 New York University Law School's lawyering

154. Deborah L. Rhode, Missing Questions: Feminist Perspectives on Legal Education, 45 STAN.L. REV. 1547, 1554 (1993) ("[V]alues traditionally associated with women have been undervalued inlegal education, and ... their absence has impoverished the professional socialization of both sexes.");Susan P. Sturm, From Gladiators to Problem-Solvers: Connecting Conversations About Women, theAcademy, and the Legal Profession, 4 DUKE J. GENDER L. & POL'Y 119, 131 (1997) (discussing therelationship between a combative model of law and legal pedagogy and the undervaluation of women inlaw schools); Workways Forum, supra note 152 (follow "Theory" hyperlink; then follow "BackgroundPaper" hyperlink under "Stereotype Vulnerability") ("Women and people of color may be strong incognitive domains that legal education tends most to neglect: interpersonal, intrapersonal, and narrativeintelligence and interactive reasoning."). Our research shows that women and men display differentbehaviors in law school. Again, we express no opinion on the source of those differences-a discussionof how men and women would behave if they were treated the same, prior to, during, and after lawschool, is beyond the scope of this Article. We merely argue that, so long as male and female studentsdisplay different behaviors and are treated differently by law teachers, we should be wary of privilegingbehaviors that are more likely to be displayed by men.

155. RHODE, supra note 152, at 197.156. For example, in contrast to tenured members of the "academic" faculty, tenured clinical

faculty members cannot vote on faculty appointments and are excluded from other decisions made bythe faculty. OFFICE OF THE PROVOST, YALE UNIV., YALE UNIVERSITY FACULTY HANDBOOK 48 (2002).

157. See John J. Costonis, Of Loaves, Fishes, and the Future ofAmerican Legal Education, in THEMACCRATE REPORT: BUILDING THE EDUCATIONAL CONTINUUM, supra note 97, at 28, 54 (criticizinglaw schools for undervaluing clinical teaching and failing to provide students with mentors); RosalieWahl, Building the Educational Continuum, in THE MACCRATE REPORT: BUILDING THE EDUCATIONALCONTINUUM, supra note 97, at 79, 80 (criticizing law schools for treating clinical professors like"second-class citizens"); Sullivan, supra note 73, at 143 (noting that in law schools, clinical professorshold weaker positions than academic professors).

158. Some forms of Socratic questioning, for example, push students to articulate extreme viewsconsidered acontextually. See Davis & Ehrenfest Steinglass, supra note 150.

159. See, e.g., Catherine G. Krupnick, Women and Men in the Classroom: Inequality and ItsRemedies, available at htp://bokcenter.harvard.edu/docs/krupnick.html (last visited Oct. 31, 2006); Tips


program engages students in interactive role plays, under close facultysupervision, as a clinical component of the first year-curriculum. Lani Guinierand Susan Sturm have developed a website, RaceTalks, describing aninteractive pedagogy designed both to facilitate discussions about race andgender and to enable more constructive learning in law school classes coveringany subject. 160 Other scholars and teachers advocate using, rather thansuppressing, political beliefs, 161 emotional responses, 162 and moralconsiderations1 63 to deepen intellectual understanding of cases and doctrines.The goal of these pedagogical innovations is to integrate theory and practiceand to recognize multiple forms of intelligence, 164 based upon what theprofession demands.

We do not advocate a single-best teaching model. Our work demonstrates,however, that a volunteer-only regime, in which professors fail to solicit broadparticipation, will result in male-dominated class discussions and women whokeep quiet, not because they have nothing to say, but because the type ofspeech solicited, accepted, and rewarded in class is limited and reflects a bias infavor of men. Professors should ensure that active learning occurs, whetherthey do so through non-coercive cold-calling, panel discussions, "on-call"systems, response papers, chat rooms, or other creative means. We do notsuggest blithely instituting Socratic questioning in which professors play agame of "hide the ball," sometimes by humiliating students. 165 Cold-calling canbe effective, especially when combined with other methods, but it should not bean exercise in which faculty members coerce students into giving the answerthat they seek and punish students who fail to comply. Professors should take

for Teachers-Sensitivity to Women in the Contemporary Classroom,http://bokcenter.harvard.edu/docs/TFTwomen.html (last visited Oct. 31, 2006).

160. Their methods include sharing and rotating power, challenging students to approach materialcritically, and facilitating trust and balance in class discussions. For a description of the program, seeRace Talks, http://www.racetalks.org/about/index.html (last visited Oct. 31, 2006).

161. Duncan Kennedy, Politicizing the Classroom, 4 S. CAL. REV. L. & WOMEN'S STUD. 88(1994).

162. Angela P. Harris & Marjorie M. Schultz, "A (nother) Critique of Pure Reason ": Toward CivicVirtue in Legal Education, 45 STAN. L. REV. 1773 (1993).

163. Guinier et al., supra note 14. Of course, many legal ethicists advocate integrating ethicalconsiderations into discussions of cases and doctrine as a means of promoting professionalresponsibility. See, e.g., Jane B. Baron & Richard K. Greenstein, Constructing the Field of ProfessionalResponsibility, 15 NOTRE DAME J.L. ETHics & PUB. POL'Y 37, 90-98 (2001); David Luban & MichaelMillemann, Good Judgment: Ethics Teaching in Dark Times, 9 GEO. J. LEGAL ETHICs 31 (1995);Deborah L. Rhode, Essay: The Pro Bono Responsibilities of Lawyers and Law Students, 27 WM.MITCHELL L. REV. 1201 (2000).

164. See, e.g., Multiple Intelligences-Background Paper, Workways Forum, supra note 152(follow "Overview" hyperlink).

165. See, e.g., Davis & Ehrenfest Steinglass, supra note 150, at 249 (warning against coercive orhumiliating use of Socratic questioning and its effects in a heterogeneous classroom environment);Rhode, supra note 154, at 1555 (arguing that the "Guess what I'm thinking" aspects of the Socraticmethod puts students into an "intellectual cage"); see also David Garner, Socratic Misogyny? AnalyzingFeminist Criticisms of Socratic Teaching in Legal Education, 2000 BYU L. REV. 1597; Jennifer Rosato,The Socratic Method and Women Law Students: Humanize, Don't Feminize, 7 S. CAL. REV. L. &WOMEN'S STUD. 37 (1997).

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responsibility for seriously engaging all students in the material being taught.Some Yale Law School faculty members acknowledge their reluctance tochallenge female students or students of either gender who present themselvestentatively, because they fear that those students are less able to "take" roughtreatment. But there need not be anything rough about robustly challengingideas. The best lawyers argue vigorously-not hostilely. An important duty ofteaching is to manage classroom discussions by inviting a diversity of voices.

Indeed, at Yale, many professors have successfully diversified classparticipation by requiring all students to speak in class. 166 A male professordescribes an experience reported by several professors in his comment that, "Istarted calling on people again when I noticed that few women, and fewminorities, were volunteering in class." Faculty members say that they sharestudents' irritation with discussions that become hijacked by a small, vocalminority of the class. It is a professor's responsibility to ensure this does nothappen.

Even within traditional classroom environments, teachers shouldexperiment with class size, technique, and organization. Faculty membersmight devote time at faculty meetings to sharing good teaching practices andimproving their own pedagogical methods. They might also observe each otherto get ideas and to provide feedback. Some YLS faculty members weresurprised by the data for their own classes showing disproportionately lowparticipation by female students and expressed appreciation for the informationthat the data provided about their own teaching methods. Institutionalizing suchfeedback will help faculty members reflect on the merits and drawbacks of theirteaching methods. As members of the academy, scholarship will remain facultymembers' primary concern, but as members of the legal profession, facultymembers must not be complicit in an educational system that disadvantages thenext generation of female lawyers.

B. Promote Greater Transparency

Teaching does not end at the classroom door. Where the rules for gettingahead are opaque, insiders will learn them more quickly than outsiders. Makinginformation available to all students will allow them to compete based on theirqualifications, not based on how well they have developed relationships withfaculty members. Because women are less likely to be part of informalmentoring networks, de-mystifying the rules of engagement will help femalestudents achieve the intellectual and professional objectives they seek.

Professors should make it clear how and how often students shouldapproach them, how well students are doing, and what students need to

166. YALE LAW WOMEN, supra note 44, at 31-35, includes numerous suggestions from both

students and professors for managing class discussions.

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succeed. At a minimum, faculty members should make themselves available ona regular basis through office hours, but they should also make clear their levelof availability for collaborative projects, writing supervision, and career advice.Students should not have to guess at how to approach their professors, nor fightwith their classmates for faculty attention. Law schools should encouragestudents to respect that commodity so precious to clients-a lawyer's time. Itwould seem, then, that faculty members send the wrong message when they(perhaps inadvertently) penalize female students who approach meetings as aprofessional engagement, to be utilized efficiently-rather than as anopportunity to develop a "buddy" relationship. Law schools should continue tocreate, evaluate, and enhance mechanisms to facilitate mentoring and role-modeling, to make sure those mechanisms are inclusive. 167

It is also important that faculty members provide quality feedback to allstudents. A male professor suggested that, "Everyone, but perhaps especiallywomen and minorities, needs to be reassured." Students without facultymentors may be more reliant on traditional forms of feedback, includingcomments on their written class work. Yale Law School Faculty and StudentsSpeak About Gender includes a list of teaching practices that faculty membersrecommend to their colleagues for improving feedback to students.168 Suchfeedback should not just affirm student strengths but also identify areas in needof improvement and note when such improvement has occurred.

Finally, faculty should create more transparency about what students needto do to compete for positions in which faculty advocacy is most important,such as clerkships and academic jobs. Of course, faculty members will not giveall students equal time and resources, but if they make clear which steps helpstudents reach these positions, a more diverse pool of students will compete forthem. Concrete suggestions for faculty include making themselves availableperiodically for lunches or talks and publicly expressing their willingness todiscuss career planning in their fields of expertise. 169

Interventions do make a difference. At Yale Law School, for example, inthe 1995-1996 academic year, faculty members formed a committee toinvestigate why female students were clerking for judges in significantly lowernumbers. 70 The committee surveyed students, examined grades, and found thatqualified women were choosing not to apply for clerkships because they felt

167. Yale Law School's "small group" system, for example, is an institutionalized opportunity forstudents to get to know a faculty member at the start of their legal education. The system shouldcontinue to be evaluated and re-worked.

168. YALE LAW WOMEN, supra note 44, at 78-79.169. For example, one Yale Law School faculty member gives periodic talks during his classes on

"how to be cool in law school"--how to compete for jobs, clerkships, and faculty mentoring.170. DEAN'S AD HOC COMM. ON THE STATUS OF WOMEN AT YALE LAW SCH., supra note 110. The

Committee found that, from 1988 to 1996, just 34% of Yale graduates who clerked for federal appellatecourts were women, and just 24% of Yale graduates who clerked on the U.S. Supreme Court werewomen.

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they could not obtain letters of recommendation from the faculty. Facultymembers implemented some of the committee recommendations, includingoffering to write letters of recommendation to outstanding female students whodid not necessarily request them. The result was a dramatic rise in the numberof women clerking, including for highly competitive courts such as theSupreme Court and certain federal appellate courts. This experience suggeststhat institutional reforms can more effectively provide feedback andencouragement to students who may be unaware of their strengths.

Law schools should also facilitate mentoring by creating mechanisms topair students with faculty members who can help them with particular goals.For example, in the wake of the Yale Study, Yale Law Women established aworkshop in which female students present papers to faculty members and totheir peers to obtain feedback in a forum that mimics the "job talks" that

aspiring academics give as part of the interview process for faculty positions. 72

During the workshop, faculty members share their advice on how to find a jobin legal academia. Another Yale Law Women faculty-student workshop offerstips to students about beginning the paper-writing process. These programs

connect students to faculty members who can offer specific feedback andguidance in their fields of interest. They create a space for female students topresent themselves frankly as being interested in academia by engaging withfaculty members about their paper ideas. The workshops are examples of howto distribute scarce faculty resources through a transparent, fair, and dignifiedprocedure.

C. Diversify Law School Faculties

The Yale Study yielded literally hundreds of recommendations fromfaculty and students about how members of a law school community canimprove gender dynamics. The dialogue itself was transformative-the processof making professors aware of how students view them and making studentsaware of professors' expectations facilitated more tolerant and constructiveinteractions, including changes at the micro-level. Certainly, changesimplemented by individuals are important, and to the extent that femalestudents can recognize the (imperfect) gender dynamics at their own schools,they can make a concerted effort to overcome the obstacles discussed above.

171. Women at Yale Law School secure clerkships, including highly competitive clerkships on theSecond, Ninth, and D.C. Circuits, in slightly lower numbers than men. The improvement in competitionfor Supreme Court clerkships is particularly dramatic. Between 1996 and 2002, 32 Yale Law Schoolgraduates clerked for the Supreme Court of the United States. Over this seven year period, 41% of Yaleclerks were female and 59% were male, compared to an average J.D. population of 46% women and54% men. See Appendix D, tbl.i; cf supra note 170.

172. The workshop has operated since 2003, and at least one of the papers presented there by afemale legal scholar has been published. See Aditi Bagchi, Deliberative Autonomy and Legitimate StatePurpose under the First Amendment, 68 ALBANY L. REv. 815 (2005).

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Taking reform seriously, however, requires changing the composition, inaddition to the attitudes, of law school faculties.

Faculty members and students at Yale Law School raised concerns aboutfaculty diversity in almost every topic explored in the Yale Study. 173 Severalstudent respondents observed that classes taught by women create different

dynamics than classes taught by men. Hiring a more diverse faculty wouldcreate a wider variety of classroom environments and, as a result, foster a richerarray of voices in discussions. Not all of these improvements can be pinpointedprecisely. For example, we do not know all the reasons that female students aremore likely to choose classes taught by women, or why female students speakmore in classes taught by women. Are female professors less reluctant tochallenge female students? Are they more aware of how inclusive thediscussion is? Do they pay more attention to pedagogy? Does their presence asauthority figures encourage female students to participate? The answer to oneor all of these questions may be yes, or a different dynamic may be at work, butwe think that the presence of women at the top of a variety of professions,including legal academia, positively affects lower-ranked women in known andunknown ways.

Some students and faculty reported that mentoring, which has a strongrole-model component, is easier among faculty and students of the same genderand/or ethnic identity. We have shown that many female students and studentsof color feel more comfortable approaching or working with faculty memberswith whom they feel they can share gender-specific and race-specific concerns.Male and female students and professors acknowledge the reality of same-sexpairing that may occur in mentoring relationships. As long as this dynamicexists, female students are disadvantaged when the faculty is predominatelymale.

A female 2L observed that the large number of male professors emboldensmen to interact more comfortably with male professors: "I think men feelsmarter because they see that almost all of the smart people hired are male."Her comment is supported by psychological studies showing the powerfulinfluence of role models on gender stereotypes, namely that seeing women in

positions of power helps people visualize women as competent andauthoritative. 174 The importance of role-modeling should not be

173. The Yale Study did not explicitly solicit opinions about faculty diversity. It did, however, askstudents how many female-taught courses they had taken. Considering women constitute just one-fifthof the faculty, the low numbers are not surprising: 67% of respondents had taken two or fewer non-clinical courses taught by a female professor, and nearly 20% of respondents (all of whom were 1Ls and2Ls) had never been taught by a woman outside of clinic. Exposure to female professors jumps whenclinical courses are considered: 49% of 1Ls who have taken a clinical course have been taught by afemale clinical faculty member. YALE LAW WOMEN, supra note 44, at 81.

174. See Irene Blair, The Malleability of Automatic Stereotypes and Prejudice, 6 PERSONALITY &SOC. PSYCHOL. REV. 242-61 (2002) (building on Mahzarin Banaji's experiments on implicit biases).Beyond role modeling, the presence of women at the top of an institutional hierarchy signals to womenthat should they, too, try to reach the top of the hierarchy, their efforts will be fairly rewarded.

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underestimated, particularly in a field that men have dominated since itsinception.

The high percentage of all students-women and men-who reportedhaving a female faculty mentor suggests that female faculty members are doingsomething right in mentoring both male and female students. 175 Studentsobserved that female faculty members appear to be over-burdened withrequests for guidance, collaborative work, and mentoring. Faculty respondentsnote the importance of female faculty members as mentors and role models. "Inlooking for mentors, students are looking for someone with life experience liketheir own," observes a male faculty member, who ultimately recommendshiring more female academics. If a predominately male faculty is partlyresponsible for lower numbers of women successfully entering legal academia,the problem becomes circular, and there will always be a shortage of"qualified" female applicants to the nation's most competitive law schoolfaculties.

Certainly, many male faculty members can and do mentor and educatestudents of both sexes. We do not suggest relieving male faculty members oftheir responsibility to educate female students effectively. However, in orderfor law schools to dismantle structures designed for men, that favor men, theymust diversify their faculties.

D. An Essential Mandate

Transforming institutional values is a broad and ambitious mandate. It askslaw schools to identify the yardsticks they currently use to measure success. Itthen asks them to determine how those yardsticks relate to the skills studentsneed to become successful thinkers and practitioners. Law schools are notmerely vocational schools that teach skills. They socialize individuals into apractice that plays a prominent role in designing public and private institutions.They are pressure points for transforming the legal profession.

This Article has described significant differences in how men and womenexperience law school. We make no attempt to ascribe fixed characteristics tomen and women. We cannot, however, ignore persistent evidence that men andwomen tend to behave differently in law school, and that the way men tend tobehave is rewarded more than the way women tend to behave. Law schoolshave a responsibility to scrutinize rewarded behaviors and determine which ofthose reflect the skills students need to become good lawyers. If law schoolsuse greater care in determining what behaviors to reward, they will providefairer opportunities to female students while improving the way they educateall students. This mandate to reform legal education is no more ambitious than

175. However, because clinical work may be more conducive to mentoring, some of the disparitymay be explained by female professors' relative concentration in clinics at the time of the study.

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2006] Why Legal Education Is Failing Women 443

necessary to begin the process of integrating-not merely tolerating-womenin the legal profession.


Appendix A: Profile of Yale Law School Students

The tables in this Appendix were generated using theFacebook for the 2001-2002 academic year.176

Top Ten Under2raduate Maoors* for Men and Women.Classes of 2002-2004

Yale Law School

Top Female % of Female Top Male Majors % of MaleMajors Students StudentsPolitical Science 20 Political Science 17& Politics & PoliticsHistory 16 History 14English 10 Philosophy 10Economics 4 Economics 8Philosophy 4 English 8Psychology 4 Mathematics 5Biology 3 Government 4Social Sciences 3 Humanities/Liberal 4& Studies Arts-OtherGovernment 2 Social Sciences 3

& StudiesInternational 2 Public Affairs & 2Relations Administration& PoliticsTotal 68 Total 74

*For students who listed a double major, the major listed first was coded.

176. YALE LAW SCH., YALE LAW SCHOOL FACEBOOK, 2001-2002 (2001).

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Top Undergraduate Institutions, Classes of 2002-2004

College % of Female Students % of Male Students

Columbia 2 4

Dartmouth 2 4

Duke 2 4

Harvard 16 10

U. Penn 1 1

Princeton 4 7

Stanford 2 2

Yale 12 10

Total 42 42

Years Between College Graduation and Law School Enrollment

Classes of 2002-2004

Years Elapsed % of Female % of MaleStudents Students

0 27 311 24 18

2 19 17

3 12 9

4 8 8

5 3 5

More than 5 years 7 11

Average for 0-5 years 1.48 1.38

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446 Yale Journal of Law and Feminism

Appendix B: Mentoring at Yale Law School

How Men and Women Report Forming Mentoring Relationships

Contact Total (%) Men (%) Women (%)Clinic 29 27 32Writing Papers 20 23 12Research Assistant 16 11 21Class Participation 13 18 7Small Group 10 8 12Out of Class Interactions 10 11 9Teaching Assistant 2 1 2

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Appendix C: Yale Law School Students Entering Legal Academia

Student Note Publication by Gender, The Yale Law Journal. 1996-2002

Year % Female Student Notes Women as % of 3L J.D. class1996-1997 32 461997-1998 32 461998-1999 48 391999-2000 44 432000-2001 31 462001-2002 25 442002-2003 35 52Average 36 45

Students Competing for Le2al Academic Jobs

Year Entering Legal % Female Candidates % Male CandidatesJob Market

1996 32 68

1997 33 67

1998 21 79

1999 23 77

2000 24 76

2001 38 63

2002 35 65

Average 29 71

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On average, women constituted 44% of the graduating J.D. classes in theyears 1996-2002. Of course, many teaching candidates who went on the jobmarket in those years graduated prior to 1996, when women constituted asmaller percentage of the J.D. classes. However, most, but not all, teaching

candidates go on the job market within five years of graduating from lawschool, as demonstrated in the table below:

Timelines for Entering Legal Academia. Fall 2002 Candidates

Years between J.D. and % Female % Malejob application Candidates in 2000 Candidates in 20000-5 years 67 575-10 years 20 21More than 10 years 13 21


Appendix D: Yale Law School Student Clerkships

Clerkships By Gender, 1996-2002

Clerkship Type % of Female % of MaleStudents Students

All Judicial Clerkships 51 57Federal Courts of Appeals 24 31

Second, Ninth, and D.C. 15 17CircuitsFederal District Courts 21 21State Supreme Courts 4 2

why legal education is failing women

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